Legal Question in Civil Litigation in California

You remind the deponent on the record of his/her obligation to answer questions under oath. If the question and answer are key to subsequent questions or to the case, then you suspend the deposition, file a motion to compel, and seek monetary sanctions. If it is not key but might lead to other information, you continue with other questions, and note, on the record, that you will be bringing a motion to compel a response to that question and seek sanctions. Have the deponent explain on the record why he/she refuses to answer the question. Then respond with appropriate law and/or facts as to why the question and answer are necessary, and bring your motion. Do not conclude the deposition, but continue it to a date after the court hears your motion to compel.

Legally, Mr. Cohen is correct, but as a practical matter it often is not worthwhile to seek a court order to compel. The easier approach is to reask the question is a slightly different fashion, change it to a leading question [I take it by your silence to my prior question that you admit that you did X, do you realize that someone reading this transcript will assume that your silence means X, do you want to give that impression, do you wish me to file a motion to hold you in contempt, not allow you to testify at trial, strike your answer if you are the defendant or the complaint if you are the plaintiff, etc.]. If they have an attorney, ask the attorney to direct them to respond in some fashion. If none of that works, go on to a series of questions they will respond to and then slip in the question they would not respond to. Remain calm and in control.

Since silence doesn't show up in the transcript, be sure to say something on the record to denote that there has been a long pause, such as, "Well, Mr. Witness, forty seconds have passed since I asked you whether the light was red or green as you approached, and we still have no answer. Do you need more time?"

You can also ask if he understood the question, if he needs to confet with his counsel, etc. Alternatively, you can address the deponent's attorney on the record and ask him/her to explain that an answer is necessary, that a jury might misinterpret silense, etc.

I think you are sometimes better off with a transcript showing that the deponent purposely avoided answering a legitimate question than one containing a partial or evasive answer, or one coerced by a motion where deponent and counsel have had plenty of time to discuss the answer that will be given.