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What Can’t They Ask You at a Deposition or Trial?

Posted February 02, 2018

By Jonathan A. Karon

Suppose you’re subpoenaed to give testimony at a deposition or trial. Everyone legitimately would like to keep certain things private. Are there subjects that a lawyer can’t question you about?

The answer is yes. The law recognizes that people have a right to keep certain information private and generally that certain subjects are out of bounds. The rules protecting you against being forced to disclose this private information are known as “privileges”. In civil cases, some of the most important privileges are: the attorney-client privilege; the psychotherapist-patient privilege; and the privilege (actually a rule of disqualification) against disclosure of private communications between spouses.

The attorney-client privilege protects confidential communications between a client and their lawyer for the purpose of obtaining legal advice. For the privilege to apply, the communication (it can be in any form, a telephone call, a meeting, an e-mail, a letter, etc.) must be for the purpose of obtaining legal advice. If you’re talking with your lawyer about the Red Sox chances this year (unless, perhaps you’re John W. Henry) the privilege doesn’t apply. It also must be a private communication. So, if anyone else is present or on the phone line, or in the e-mail chain, the communication is probably not privileged. But you can refuse to answer any question about what you told your lawyer or what your lawyer told you if it was in private and concerned legal advice. (If you’d like some more interesting examples of how the privilege works, see my previous blog post “Is Trump, Jr.’s Conversation with the President Protected by Attorney-Client Privilege?”

Massachusetts law provides that communications between a patient and their mental health provider are privileged from disclosure. Specifically, Massachusetts General Laws Chapter 233 § 20B creates a psychotherapist-patient privilege which applies to communications with psychiatrists, psychologists and psychiatric nurses and Mass. Gen. Laws Ch. 112 § 135B applies the same privilege to communications between patients and licensed social workers. Massachusetts Courts have been very protective of “the justifiable expectations of confidentiality that most individuals seeking psychotherapeutic treatment harbor.” Commonwealth v. Kobrin, 395 Mass. 284, 290 (1985).

There are a few limited exceptions in the law. The only one which usually ever arises is that if a party puts their mental or emotional condition at issue in the case they may waive the privilege against disclosure. This is still a high bar. Merely alleging that you suffered emotional distress due to the defendant’s negligence does not entitle the defense lawyers to question you about any prior mental health treatment. . Sorenson v. H & R Block, Inc., 197 F.R.D. 199, 203 (D. Mass. 2000). Only where a plaintiff alleges that they required mental health treatment due to the defendant’s negligence, is a court likely to order you to answer questions about your mental health treatment and even then the information may be limited to details concerning the specific treatment you claim you required due to the defendant’s wrongful conduct. Bottom line: if you’re just a witness, you should be able to refuse to answer any question about your mental health treatment. If you’re a party to a suit, you probably can refuse to answer a question about mental health treatment, but you should confer with your lawyer about this.

Finally, Massachusetts law (General Laws Chapter 233 § 20) prohibits any testimony concerning private communications between spouses. So, if you and your spouse conferred without anyone else being present, you cannot be asked to divulge what was said. Interestingly enough, this is not technically a rule of privilege, but of “disqualification” meaning that even if both you and your spouse want to testify about what was said, you can’t if any party objects. The purpose behind the law is to protect “marital confidentiality and harmony” and although the Massachusetts Supreme Judicial Court has essentially characterized the law as silly and outmoded, as it was created by statute and hasn’t been changed, it remains the law. So, if anyone asks you what you and your spouse discussed privately, you can generally refuse to answer.

There are many other recognized privileges, for example the privilege against self-incrimination (which is usually more important in criminal cases) and executive privilege (probably not an issue for you unless your last name is Trump). There are also a number of limited exceptions to the privileges discussed above. If you’re concerned whether you can be forced to divulge private embarrassing information you should consult with an attorney to know your rights.   So your attorney can do a good job, you need to make sure to give them all the details of the information you want to protect.  As long as no one else is present, that conversation will be privileged.

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