Kevin G. Faley and Andrea M. Alonso, New York Law Journal

March 21, 2016

Historically, CPLR §3115 has governed the process by which attorneys have objected to questions during an examination before trial. In 2006, however, 22 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.1

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 which 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 co-defendant's alleged medical malpractice; and (4) the right against self-incrimination.2

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."3

Palpably Improper Question

Some questions that are considered palpably improper or irrelevant are those that seek a conclusion of fact or law, are largely related to a party's understanding of their ultimate legal contentions, force a witness to draw inferences from the facts, or are grossly irrelevant or burdensome to the witness. However, "[g]iven the liberal nature of discovery, the burden is high to establish that a discovery question is palpably irrelevant or grossly improper or burdensome."4

In Mayer v. Hoang,5 a case in which the plaintiff fell from a ladder while removing a light fixture, the plaintiff properly refused

to answer several questions. The first question concerned whether the defendant supplied any defective, unsafe or improper devices or materials which caused the plaintiff's fall or whether the work area appeared to be unreasonably dangerous. The Appellate Division, Fourth Department, ruled this question objectionable on the grounds that it compelled plaintiff to answer questions seeking legal and factual conclusions or draw inferences from the facts.

The second question the plaintiff properly objected to was whether he had a "calculation as to any lost wages that [he] would claim as a result of this incident."6 The court stated that answering this question would be improper because it primarily sought a legal conclusion. Further, a review of the plaintiff's deposition transcript revealed that the plaintiff had answered all other fact-based questions regarding his lost wages.7

It is extremely difficult to prove the heavy burden normally associated with improper questions and only some of the most extraordinarily improper questions reach this burden. One such example would be asking a rape victim to identify her prior sexual partners as well as the positions which she performed during those encounters.8

Similarly, in another sexual assault case where the victim-plaintiff claimed that the incident adversely affected her sexual relations with her husband, the Appellate Division, Third Department, held that the plaintiff did not have to answer any questions about her sexual history prior to her marriage to her husband.9 The court ruled this way because of the burden it would place upon the victim-plaintiff and the fact that the plaintiff's claims of sexual dysfunction were confined only to her marital relationship and not previous ones.

Questions that seek information not relevant to the case at hand can also be ruled to be palpably improper or irrelevant. In a personal injury case where the plaintiff was injured after falling through a trap door while on a job interview, the Supreme Court, Nassau County, found the defendant's question whether the plaintiff had ever been treated for alcoholism irrelevant.10 The court stated that nowhere in the record was there any indication that the plaintiff was drinking alcohol on the night of the accident. Furthermore, to answer the question would violate the physician/patient privilege which can only be waived by the protected party.

Privileged Communications

The framework set forth for privileged communications is that they must be private between the two parties, relate to the professional services being provided, the information being sought must never have been mentioned by the witness and the privilege must never have been waived. These rules can be applied in most cases where a witness establishes a right to a privilege. Many of these privileges are codified in CPLR §4502-4510.

While information relating to the litigation at hand will still be discoverable, anything outside of the required information is strictly off limits, unless the witness waives the privilege. The overall purpose of these privileges is to facilitate a truthful exchange of information between co-dependent parties.

The attorney-client privilege enables a person receiving legal advice to communicate with his attorney in the comfort of knowing that the information exchanged will not be made known to others without the client's permission. For example, in  Clark v. Schuylerville Cent. Sch. Dist.11 the Third Department held that statements made by a teacher to her attorney in a defamation case were privileged because she was seeking legal advice relating to the management of the district's teaching staff and their conversations were confidential and private. Furthermore, the defendant was able to prove that she had done nothing that would waive the attorney-client privilege.

In Kennedy v. Northern Westchester Hosp.12 the Westchester County Supreme Court laid out several factors to be considered when determining whether a spousal communication is subject to a privilege. A court must consider if the exchange occurred due to the absolute confidence in the marital relationship and was induced by this confidence, as well as whether or not the husband and wife would have been willing to discuss or repeat the conversation in the presence of other persons. If the spousal communications occurred in the presence of others then the privilege was waived at that moment.

The court also held that the burden of establishing the spousal privilege is on the party asserting it.

When asserting the doctor-patient privilege a witness cannot refuse to reveal medical incidents or facts once the witness has put the medical condition in controversy. Often in a personal injury case the plaintiff has already put a specific injury at issue by filing the lawsuit.

In Brower v. Beraka13 the defendant doctor was accused, in part, of medical malpractice when he performed surgery at a time when he may have been suffering from the aftereffects of an arm surgery. The Supreme Court, New York County, ruled the defendant did not waive the physician-patient privilege by denying allegations in a complaint. It was held that unless the defendant asserted the condition as an affirmative defense or voluntarily disclosed that he was suffering from an arm condition during the relevant time then his medical records would not be discoverable. However, the doctor could not avoid answering questions of fact regarding whether he had suffered the injury or not.

This ruling reaffirmed that the privilege is not strictly confined to communications, but also includes "any medical information acquired by the physician through the application of professional skill or knowledge."14 The ruling also reaffirmed "[t]hat

facts and incidents of a person's medical history are discoverable but specifics, such as the name of the condition one suffers from, are not."15 Thus, Dr. Beraka had to "disclose whether he suffered from any arm impairment and whether he was under the treatment of a physician for a condition related to upper extremities between" the date of the plaintiff's procedure and the end of the following month.16

Co-Defendant's Opinions

In medical malpractice cases it has been held that "a plaintiff in a malpractice action is entitled to call the defendant doctor to the stand and question him both as to his factual knowledge of the case (that is, as to his examination, diagnosis, treatment and the like) and, if he be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community."17 This holding has been extended to examinations before trial as the scope of a pretrial examination is greater than that at a trial and pre-trial testimony does not equate to admissibility at trial.18

It is therefore proper to object to a question at a deposition when the defendant is asked "to opine explicitly on whether the co-defendant physician met or deviated from the applicable standard of medical care."19 If a question focuses, even in part,

on the defendants' treatment of the plaintiff or knowledge of the case then it is proper to answer at the deposition including in instances where the questions are posed as a hypothetical.

Questions related to a doctor's work or expertise can be important to the court for the purpose of establishing the general standard of medical care in the community. Some compound hypothetical questions that ask the witness to assume a wide range of facts may be improper, but generally a witness must answer any question related to the care they personally provided so the court can determine whether or not they deviated from a standard of care. If the witness "feels that he cannot say whether and how his management of the patient would or might have been altered by knowing specified additional facts about the patient…then he need merely say so in response to plaintiff's queries."20

In Dare v. Byram21 the Fourth Department illustrated the difference between acceptable and unacceptable questions. One defendant improperly objected to questions regarding acute care issues which were related to his examination, diagnosis, and treatment of the plaintiff; however, he properly declined to answer questions regarding well-child care issues which related solely to the alleged negligence of his co-defendant. Similarly, his co-defendant was not required to answer questions regarding acute care issues which were solely related to the defendants' alleged negligence.

Fifth Amendment Privilege

Pending criminal proceedings are a compelling factor when courts must determine whether or not to stay a trial or deposition. This is due to the likelihood that an examination before trial will be relatively ineffective at discovering information if the witness invokes his Fifth Amendment right against self-incrimination. Additionally, it is probable that the scope of discovery will be narrowed by collateral estoppel arising out of the criminal action and there may be a possible prejudice against defendants who invoke their Fifth Amendment right.22

Unlike some other objections, which occur during the examination before trial, a Fifth Amendment objection is often raised before the deposition even begins. Should an examination before trial nonetheless occur, the witness "may only assert the privilege when he reasonably perceives a risk from answering a particular question posed during the deposition."23 If the criminal proceedings are concluded then the deposition in the civil case may occur so long as the Fifth Amendment conflict no longer remains.


In light of the 2006 passage of NYCRR §221.2, there are few, and very narrowly defined, circumstances in which a witness may properly object to answering a question at an examination before trial. Generally, all questions must be answered even if the answer may not be admissible as evidence at trial. The four main categories of objectionable questions are palpably improper or irrelevant questions that place an undue burden on the witness, privileged communications, codefendants in an alleged medical malpractice case, and questions that run afoul of an individual's right against self incrimination. When an objection does occur it must be clearly stated by the witness' attorney in order to preserve the right to the objection upon appeal.


1. 22 NYCRR §221.2.

  1. See Palacino v. Brogno, 2013 N.Y. Misc. LEXIS 6843, *7-9 (Sup. Ct., Orange Co. Oct. 22, 2013).
  2. Hildebrandt v. Stephan, 42 Misc.3d 719, 724 (Sup. Ct., Erie Co. 2013).
  3. Palacino v. Brogno, 2013 N.Y. Misc. LEXIS 6843, *7 (Sup. Ct. Orange Co. Oct. 22, 2013). 5. 83 A.D.3d 1516, 1517 (4th Dept. 2011).

6. Id. at 1518.

7. See Id. at 1518-9.

8. Andersen v. Cornell Univ., 225 A.D.2d 946, 946 (3d Dept. 1996). 9. Dolback v. Reeves, 265 A.D.2d 625, 626 (3d Dept. 1999).

10. C.A. v. JSCP Corp., 2006 N.Y. Misc. LEXIS 3376, *1 (Sup. Ct. Nassau Co. 2006). 11. 57 A.D.3d 1145, 1146 (3d Dept. 2008).

12. 2014 N.Y. Misc. LEXIS 5055, *7-8 (Sup. Ct. Westchester Co. July 7, 2014). 13. 12 Misc.3d 1108, 1110 (Sup. Ct., New York Co. 2006).

14. Id. at 1111.

15. Id.

16. Id. at 1112.

  1. Bubar v. Brodman, 30 Misc.3d 324, 327 (Sup. Ct., Erie Co. 2010) (citing McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20, 29 (N.Y. 1964)).
  2. See Johnson v. New York City Health & Hospitals Corp., 49 A.D.2d 234, 237 (2d Dept. 1975).
  3. Bubar v. Brodman, 30 Misc.3d 324, 330 (Sup. Ct., Erie Co. 2010).

20. Id. at 331.

21. 284 A.D.2d 990 (4th Dept. 2001).

  1. See Stolowski v. 234 E. 178th St. LLC, 12 Misc.3d 1159(A) (Sup. Ct., Bronx County 2006).
  2. Lloyd v. Catholic Charities of Diocese of Albany, 23 A.D.3d 783, 784 (3d Dept. 2005).

Kevin G. Faley and Andrea M. Alonso are partners at Morris Duffy Alonso & Faley. Anthony Riverso, a paralegal, assisted in the preparation of this article.

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