Court of Appeals Affirms Award of Sanctions Where Attorney Instructed Client Not to Answer Questions at Deposition

ByDouglas C. Melcher

On November 3, 2023, the District of Columbia Court of Appeals decided Wendemu v. Tesema, 304 A.3d 953 (D.C. 2023) in which it affirmed an award of sanctions where an attorney instructed his client not to answer certain questions during the client’s deposition.

By way of background, Super. Ct. Civ. R. 30(c)(2) “restricts how a party may object during a deposition and limits the circumstances in which a person may instruct the deponent not to answer a question.” Wendemu, 304 A.3d at 960. Objections “‘must be noted on the record, but the examination still proceeds’ despite [an] objection.” See id. (citing Super. Ct. Civ. R. 30(c)(2)). The rule specifies only three circumstances in which the deponent may be instructed not to answer: “(1) ‘to preserve a privilege,’ (2) ‘to enforce a limitation ordered by the court,’ and (3) ‘to present a motion under Rule 30(d)(3).'” See id. (quoting Super. Ct. Civ. R. 30(c)(2)).

Pursuant to Super. Ct. Civ. R. 30(d)(3), “[a]t any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Super. Ct. Civ. R. 30(d)(3). “If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.” Id.

In this case, the attorney instructed his client not to answer questions that purportedly called for “non-privileged legal conclusions” or information that was “not probative.” See Wendemu, 304 A.3d at 961-64. The opposing party subsequently moved the trial court to compel answers and to award sanctions. See id. at 957-59. Persuaded that the attorney and client had acted improperly, the trial court issued an order compelling answers and further issued an order awarding sanctions. See id.

On appeal, the Court of Appeals considered whether the award of sanctions was proper. It held that the award of sanctions was proper because the attorney should not have instructed his client not to answer questions on the grounds that they called for “non-privileged legal conclusions” or sought information that was “not probative.” See id. at 961-64. The Court of Appeals held that “legal-contention questions provide no basis for instructing a deponent not to answer.” See id. at 961. It further held that “a lack of probative value or relevancy, by itself, provides insufficient justification to instruct a deponent not to answer.” See id. at 963. In so holding, the Court emphasized that Super. Ct. Civ. R. 30(c)(2) provides only three grounds for not answering and none of those grounds applied in this case. See id. at 961-64.

The Court of Appeals also held that the award of sanctions was proper because the trial court appropriately exercised its discretion pursuant to Super. Ct. Civ. R. 30(d)(2). See id. That rule “empowers trial courts to sanction a person who ‘impedes, delays, or frustrates the fair examination of the deponent.'” See id. at 960-61 (quoting Super. Ct. Civ. R. 30(d)(2)). The Court of Appeals concluded that the trial court appropriately exercised its discretion because there was not any justification for the attorney to instruct his client not to answer the questions. See id. at 961-64. The Court also held that the trial court was not required to conduct an oral hearing on the issue of sanctions before making the award. See id. at 964-65.

Lastly, despite affirming the award of sanctions, the Court of Appeals declined to award additional sanctions pursuant to D.C. App. R. 38 because it concluded that the appeal was not frivolous. See id. at 965-66.

Douglas C. Melcher

I am a licensed attorney with about twenty years of experience in the private practice of law. I focus my practice on advising and representing individuals, small businesses, and non-profits in civil litigation, including trial court proceedings, appeals, administrative hearings, mediation, and arbitration. I have written numerous articles for D.C. Law Blog and other publications, and am the author of Tort Claims and Defenses in the District of Columbia, which is a handbook for lawyers about civil claims for injury to persons, property, reputation, and commercial interests. Please feel free to contact me if you would like to inquire about assistance with a legal matter. I can be reached at dmelcher@melcherlaw.com or 202-427-5753. For further information about my background, click here.