A deposition is an oral examination under oath taken during a lawsuit or other court proceeding. In most states, the person answering deposition questions, called the deponent, must answer every question unless the answer is protected by a privilege or a prior court order.
Deposition Definition: Out-of-Court Statement Under Oath
During a lawsuit, the parties engage in a process called discovery. During the discovery period, both sides make requests of the other side for documents, answers to written questions and oral testimony. The oral testimony is taken before a court reporter authorized to administer oaths, normally at the office of one of the attorneys in the case, and it is taken under penalty of perjury. This out-of-court testimony is called a deposition.
How Depositions Work
At the deposition, the court reporter asks the deponent to swear or affirm that she will tell the truth to the best of her knowledge. The court reporter will take down everything the deponent and the attorneys say in the deposition. When neither side has any additional questions, the deposition is concluded.
Answering Deposition Questions
The Federal Rules of Civil Procedure, which apply to all civil cases filed in federal courts, require deponents to answer every question unless the information is privileged or the court has previously ordered that the information cannot be revealed. A deponent may also refuse to answer if his attorney moves to limit or terminate the deposition based upon bad faith by the deposing attorney.
On the state level, every state has its own rules about depositions, although they frequently mirror the federal rules or may add to them. Michigan, for instance, follows the federal rules for answering questions at a deposition, while New Jersey adds that confidentiality may protect an answer.
Read More: Questions for a Divorce Deposition
Objections During Depositions
Attorneys make objections to questions during a deposition for multiple reasons, including objections to the form of a question, objections related to relevance of a question or objections on the basis of hearsay. The deponent generally must still answer despite these objections. If an attorney objects based upon a privilege, however, the deponent will be instructed not to answer the question.
What Is a Legal Privilege?
In a legal setting, a privilege is a protection a party invokes to keep the other side from learning certain private communications. The most common privilege is the attorney/client privilege, which nearly absolutely protects communications between an attorney and a client. Other privileges that vary by state include doctor/patient privilege and accountant/client privilege.
Attorney/Client Privilege Explained
The attorney/client privilege exists as long as the communication at issue was not witnessed by any third parties who are not agents of the client or the client's attorney. For example, if a lawyer and a client have a conversation at the lawyer's office, and the lawyer's paralegal is listening, it is still a privileged communication because the paralegal is an agent of the attorney. However, if the conversation occurs in front of the client's friend or in the hallway of the courthouse in front of strangers, there is no privilege.
If an attorney taking a deposition asks the deponent to testify about a conversation the deponent had with his counsel, the deponent can refuse to answer the question based upon the attorney/client privilege.
Confidentiality at a Deposition
Some states, such as New Jersey, permit a deponent to refuse to answer a question based on confidentiality. The attorneys may argue about what confidentiality means for purposes of that rule, but generally a question asked to embarrass or harass the witness may fall under that umbrella.
Consequences of Refusal to Answer
If a deponent refuses to answer a question at a deposition, and the answer is not protected by a privilege or otherwise as set forth in the state's rules, the deposing attorney may file a motion with the court to compel a response. He may even obtain monetary sanctions against the deponent for a refusal to answer.
Generally, a deponent cannot refuse to answer a question at a deposition unless the answer would reveal privileged information or unless the court previously ordered that the information cannot be revealed.
- Cornell University Law School: Federal Rules of Civil Procedure
- Legal Dictionary: Privileged Communication
- Michigan Court Rules: Rule 2.306 - Depositions on Oral Examination
- New Jersey Rules of Court: Rule 4:14-3 - Examination and Cross-Examination; Record of Examination; Oath; Objections
- Cornell University Law School: Deposition
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.