Seeking a Protective Order

| by Heather Duncan, Esq.

Under the Civil Discovery Act of 1986, California civil discovery (including the scheduling and taking of depositions) was designed to be essentially “self-executing.” That is, a party demanding discovery doesn’t need prior approval, and a responding party may object instead of providing the requested information. An objection often ends a dispute, but sometimes it doesn’t. When an objection isn’t enough, the next step may be to move the court for a protective order.  

Under the California Code of Civil Procedure (CCP) §2025.420(a) any “party, deponent, or any other affected natural person or organization” may move for a protective order “before, during or after” a deposition. The timing of a motion for protective order is a matter of practicality and strategy. Orders changing the date, time, and location should obviously be made in advance. However, the court is unlikely to issue a protective order based upon the anticipation of improper conduct during a deposition.

If you are in an ongoing deposition that has become oppressive, is being conducted in bad faith, or involves other forms of improper conduct, moving for a protective order may be the only way to stop ongoing questioning and require the court reporter to suspend the deposition.

The grounds for a motion for a protective order for a deposition are that the moving party will suffer unwarranted annoyance, embarrassment, or oppression, or undue burden and expense if the court does not grant the motion for the protective order. CCP §2025.420 (b).

The court is given a great deal of latitude in issuing the protective order and may make “any  order that justice requires”, including but not limited to the following per CCP §420(b):

  • That the deposition not be taken at all or be taken at a different time or place.
  • A limitation on the terms and conditions of the deposition.
  • That the testimony be recorded in a different manner.
  • A limitation on the scope of the examination or on the items to be produced.
  • Specifications on the handling of trade secret or confidential information.

Before seeking a protective order it is best to evaluate the risk, cost, and need, keeping in mind that if you are not confident of the merits of your motion you may be subjecting yourself and your client to the risk of sanctions.

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