MOVING PARTY: Defendants Ownzones Media Network, LLC and Dan Goman
RESPONDING PARTY(S): Cross-Defendant Howard Misle
PROOF OF SERVICE:
- Correct Address: Yes.
- 16/21 (CCP § 1005(b)): OK. Served by personal service on July 3, 2019.
- GRANT motion to compel further deposition testimony as to Questions 1 – 6; DENY as to Question No. 7;
- DENY both parties’ request for sanctions;
- CONTINUE hearing on issue/evidence sanctions.
ANALYSIS
Motion to Compel Further Deposition Testimony
Questions Nos. 1, 2, 3, 4, 5, 6: GRANT.
The questions were within the scope of reasonable follow up. The separate statement sets forth a sufficient basis for discoverability of the information sought. Irrelevance is not a sufficient ground to refuse to answer a deposition question:
[E]ven were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition. Code of Civil Procedure section 2025, subdivision (m), governing deposition objections, divides objectionable questions into three categories. Subdivision (m)(1) applies to questions delving into privileged areas and provides that to protect privileged information, “a specific objection to its disclosure” must be “timely made during the deposition.” Subdivision (m)(1) thus sanctions use of an objection coupled with an instruction not to answer in order to protect privileged information from disclosure.
Code of Civil Procedure section 2025, subdivision (m)(2) applies to questions containing errors or irregularities that might be cured if promptly brought to counsel’s attention, such as errors in the form of the question. Objection to these types of missteps is “waived unless a specific objection to them is timely made during the deposition.” Subdivision (m)(2) makes clear that counsel should not instruct the deponent not to answer such objectionable questions, expressly stating that “unless the objecting party demand the taking of the deposition be suspended to permit a motion for a protective order under subdivision (n), the deposition shall proceed subject to the objection.”
Code of Civil Procedure section 2025, subdivision (m)(3) governs inquiry into irrelevant and immaterial matters and provides: “Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.” (Italics added.) In other words, the deponent’s counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition. Relevance objections should be held in abeyance until an attempt is made to use the testimony at trial.
Code of Civil Procedure section 2025, subdivision (n) goes on to state that the deposition may be suspended if “any party attending the deposition or the deponent demands the taking of testimony be suspended to enable that party or deponent to move for a protective order on the ground that the [*1015] examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party.” Deposing counsel’s insistence on inquiring into irrelevant areas could justify suspension under this standard, but only if it reaches the point where it could legitimately be said that counsel’s intent was to harass, annoy, embarrass, or oppress. Taken as a whole, these provisions clearly contemplate that deponents not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel’s conduct has reached a stage where suspension is warranted. The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy, etc., indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.
Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15 (bold emphasis and underlining added).
Question No. 7: DENY.
Misle gave a definitive no. If he perjured himself, then there may be consequences but that is not to be addressed by this motion.
Sanctions
Both parties’ requests for monetary sanctions are DENIED. Both parties were entitled to obtain a ruling clarifying whether the deposition questions were within the scope of topics allowed by the Court at the IDC.
The hearing on Defendants’ request for issue and/or evidence sanctions is CONTINUED to September 20, 2019. If Misle has failed to answer the deposition questions by that time, the Court will consider imposing issue and/or evidence sanctions. Defendants are to submit a supplemental brief regarding Misle’s deposition testimony by September 6, 2019. Plaintiff may submit a supplemental opposition by September 13, 2019.