Arizona Court of Appeals, Division One holds that instructing a client not to answer non-privileged questions without terminating or limiting the deposition violates Arizona Rule of Civil Procedure 30(d).

The defendant was involved in a car accident with the plaintiff. During the defendant’s deposition, his attorney repeatedly instructed him not to answer questions about whether he received any citations related to the accident, citing A.R.S. § 28-1599. The attorney insisted opposing counsel would need a court order before his client would answer questions about citations but refused to terminate the deposition.

The superior court granted the plaintiff’s motion for sanctions against the attorney, awarding the plaintiff attorneys’ fees and permitting a new deposition of the defendant. The attorney sought special action review.

The Arizona Court of Appeals accepted jurisdiction over the attorney’s petition but denied relief, holding that the attorney violated Arizona Rule of Civil Procedure 30(d) by instructing his client not to answer non-privileged questions without moving to terminate or limit the deposition. Under Rule 30(c)(2), “[c]ounsel may instruct a deponent not to answer . . . only when necessary to preserve a privilege, to enforce a limit ordered by the court, or to present a motion.” The Court explained that under A.R.S. § 28-1599, evidence of traffic citations is admissible at trial for purposes other than to prove negligence. Because § 28-1599 does not preclude introduction of such evidence for all purposes, it does not create a privilege barring deposition questions about citations. If the attorney believed the citation questions were improper, under Rule 30(d), he could have stopped the deposition and filed a motion to terminate. He also could have suspended the deposition to obtain an order limiting the scope of the deposition. The attorney could not, however, selectively instruct his client not to answer non-privileged questions without moving to terminate or limit the deposition.

The Court also held that the superior court did not abuse its discretion by awarding the plaintiff her attorneys’ fees and ordering the defendant to be redeposed.

Judge Jacobs authored the opinion, in which Judges Cruz and Thumma joined.

Posted by: Allie Karpurk