Practical Guidelines for Lawyer Depositions

February 3, 2021

Although fortunately rare, lawyers’ depositions almost always involve complicated privilege issues. One might argue that just about every question posed to a lawyer would justify a privilege assertion — but that would go too far.

In Evanston Insurance Co. v. Murphy, No. CV-19-04954-PHX-MTL, 2020 U.S. Dist. 218817 (D. Ariz. Nov. 23, 2020), a non-party lawyer’s deposition triggered privilege objections and challenges to those objections. The court carefully sorted through the deposition transcript, and understandably distinguished between non-objectionable and objectionable questions. For instance, the court held that questions about whether the deponent/lawyer represented certain entities “did not involve privileged material.” Id. at *10. In contrast, the court explained that “the answer to the question, ‘Why not just try the case or settle the case within your 9 million policy limits?’ would conceivably entail attorney-client privileged communications and strategies.” Id. at *9.

Although lawyers’ depositions often generate subtle privilege distinctions, a helpful starting rule of thumb is that lawyers being deposed generally: (1) cannot object to “who, what, when, where” questions; but (2) can object to “why” questions.