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Proper Objections at a Personal Injury Deposition
Historically, New York's Civil Practice Law & Rules (CPLR) ' 3115 has governed the process by which attorneys have objected to questions during an examination before trial. In 2006, however, 22 New York Codes, Rules and Regulations (NYCRR) ' 221.2 became effective and codified some of the objections that had arisen under the previous statute. Section 221.2 states that “[a] deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision.” An objection under Section 221.2 must be clearly stated by the witness' counsel in order to preserve it in case of appeal.
In a personal injury action there are four main categories of questions that an attorney can instruct his client not to answer. These categories are: 1) the palpably improper or irrelevant question; 2) privileged communications; 3) a defendant-physician's opinion of the co-defendant's alleged medical malpractice; and 4) the right against self-incrimination. See Palacino v. Brogno, 2013 N.Y. Misc. LEXIS 6843, *7-9 (Sup. Ct., Orange Co. Oct. 22, 2013). The four categories reflect the well-settled “standard governing the appropriate scope of questioning at a deposition [which] is not based on admissibility at trial, but on whether the questioning relates to the controversy and will assist in trial preparation.” Hildebrandt v. Stephan, 42 Misc.3d 719, 724 (Sup. Ct., Erie Co. 2013).
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