Before a trial takes place, both sides engage in the process of discovery, during which they gather information and evidence that they hope will bolster their case. And often times, sworn testimony from witnesses can be a crucial piece of evidence gathered in the process of discovery.
In order to gather this testimony, however, a party must conduct a deposition, in which the witness provides testimony outside of the courtroom. Washington allows use of depositions in court to contradict or impeach the testimony of a deponent as a witness, or under other circumstances.
Of course, before a deposition can be considered by the court, the deposed witness, known as the deponent, must first give sworn testimony. But what if he or she doesn’t want to take part in the process? Can the deponent refuse a deposition?
Washington State Law on Depositions
The laws governing the gathering of depositions in Washington depend on whether or not the case is tried in civil or criminal court. Many family law issues, such as those regarding divorce, will be decided in civil court, where depositions are discussed under Washington Rule CR 30. This law dictates how a deposition must be taken, as well as any other specifics pertinent to this part of the discovery process.
If a party wishes to depose a particular individual, he or she must issue a subpoena form which requests the individual's attendance at the deposition. The individual may choose not to attend, although failure show up at this proceeding could result in fairly serious consequences.
What Happens if I Refuse a Deposition?
In order to understand the consequences for failure to show up at a deposition, it is first necessary to discuss the nature of a subpoena, as well as its intended purposes. A subpoena is a written order that compels a party to provide testimony on a specific issue pertaining to a case.
In the case of a deposition, since it must be requested through the issuance of a subpoena, choosing to not give testimony when formally requested may result in punishment for contempt of court, under the provision of Rule CR 37.
A deponent who, without justification, refuses a deposition when requested via subpoena may be ordered to pay expenses caused by the failure, including attorney’s fees for the side that requested the deposition. In some cases, the court may order that the party that did not attend the deposition cannot introduce certain matters in evidence, or might even render judgment by default against the disobedient party.
Other penalties may also exist, so talk to your attorney before you decide to refuse a deposition.
Circumstances in Which You Can Avoid a Deposition
Washington law does provide certain circumstances in which a deponent is able to avoid a deposition. Pursuant to Rule CR 26, a court may issue a protective order for a deponent to prevent the deposition or discovery process from occurring.
This protection will only be offered if a deponent makes a specific motion for the order, and if good cause is shown that the order would protect the deponent from embarrassment, oppression, annoyance, or undue burden or expense. In some cases, the court may order that the deposition occur under certain terms and conditions, or may make other specifications instead of ordering the deposition not occur.
Can I Refuse to Answer Questions in a Divorce Deposition?
While an opposing attorney may ask you deposition questions about your finances, assets, and your child care arrangements, they may also attempt to ask questions that are embarrassing for you to answer. In some cases, the attorney will be trying to evoke a response from you or get sympathy for his client—in others, the line of questioning may be deemed relevant to the case.
How do I know which questions I should answer?
You should always answer a question if the answer could have a bearing on the outcome of the case. For example, a question about your history of drug or alcohol abuse may be embarrassing, but it could affect the judge’s decision in a custody case, so you will likely be called upon to answer.
Which questions should I refuse to answer in a divorce deposition?
There are lines of questioning that are considered personal or protected, and you do not have to answer in most cases. These can include:
- Privileged information – Privileged information is usually a confidential conversation, such as a discussion between a doctor and a patient, between a lawyer and a client, or a confession given freely to a priest.
- Private information – Any information about a person’s health, sexuality, or religious beliefs may be considered privileged unless they have a direct bearing on the case. Read more tips if you are asked personal questions in your deposition.
- Irrelevant information – You may object to any question if you feel that it is improper or does not have any relevance to the case. In most cases, your attorney will stop you from answering and explain why she objects. The deposing attorney then must either drop the question or explain how it is related to your case.
You should never go into a divorce deposition without being fully prepared by an attorney. If you are still representing yourself, but are not sure what to do next, fill out the brief contact form on this page so we can get in touch with you as soon as possible.
Do You Have to Attend a Deposition for Your Family Law Case? Get help from Molly B. Kenny!
If you receive a subpoena to attend a deposition so you can be deposed, seek representation from an attorney. Your lawyer can explain your rights and can help guide you regarding whether you can refuse a deposition or refuse to answer questions during a divorce deposition.
Contact the Law Offices of Molly B. Kenny today for help by completing our contact form or calling our Bellevue family law office. We can advise you on your rights and the best course of action. You can reach us by calling 425-460-0550.