The Deposition: What It is, How It Works and How to Conquer It
from No Compromise Issue 19

Over the past several years, the companies we target have started attempting to use lawsuits as a mechanism to fend off animal liberationists. Although the lawsuits are rarely a successful tactic, they do present a host of issues that are often alien to activists. More importantly, they are ridden with new and sometimes confusing processes of extracting information.

The use of the civil process by our enemies typically relies on the following beliefs: that we probably will not respond, that we cannot afford to hire a lawyer to defend us, that any lawyer we do hire will not be as good as their lawyers, and that in suing us they might just tap into a wealth of useful information. However, experience shows us that we can, in fact, find lawyers to defend us for cheap or free, that we can learn to represent ourselves, and that we can educate ourselves and our lawyers about our rights and how to assert them in order to sabotage our opponents’ attempts at obtaining information.

The point of this article is to give activists a basic sense of the civil lawsuit process, what our rights are, and how to use them most effectively. While this article may serve as a general guide on how to conduct yourself through the discovery portion of a lawsuit, laws and procedures vary from state to state, and various circumstances demand different responses. Use this information for what it is: an overview of the civil process and an activist’s guide to security culture in the frame of civil lawsuits.

It is impossible to explain the entire civil litigation process here. The next few paragraphs will only provide a very general overview, followed by some basic guidelines to keep in mind to stay security-safe.

A lawsuit is initiated when the Plaintiff (the party filing the case) serves the Defendant with a summons and the lawsuit. At that point, the Defendant has 30 days to file an answer to the lawsuit. If you somehow find out you are being sued but have not received legal papers, you do not have to do anything in response. It will cost the other side money and give you more time if you try to avoid being served with the legal papers. Some tips on this: do not answer the door if you see someone holding a stack of papers, tell your roommates to be on the lookout for a plain-clothed person at the door with papers looking for you, and be creative.

The first thing to do is to talk to and possibly hire a good lawyer. She will be able to offer guidance through this process. Also, be sure to talk with activists who have been through the civil courts before, talk to your co-defendants, and consider putting up a maximum resistance (including refusing to answer questions).

After an answer is filed, the discovery process begins. This may (and probably will) include depositions, interrogatories, requests for production, and subpoenas duces tecum. While these are the most common forms of discovery, there may often be other types that arise. The discovery phase of lawsuits serves one purpose: to gather information. In light of the fact that the information is sought by our enemies and that the information will undoubtedly be readily available to other entities (e.g., law enforcement agencies and other campaign targets), any information disclosed should be done carefully and only if absolutely necessary.

Some things to remember when answering discovery requests or testifying at depositions:

1. If you do not know the answer, do not guess or speculate.
2. Your lawyer has one thing in mind: your best interests. Your best interests may not always match up with the best interests of other activists, organizations, or the movement. Never compromise the safety (legal or otherwise) of others to save your own ass. More than likely, any information that would harm others will neither change your fate nor advance your position.
3. Do not answer questions unrelated to the issues raised by the lawsuit.
4. Do not offer information about other activists or organizations. Even if a question and answer seems innocent, you may be providing information that can harm others.
5. If you are going to plead the Fifth to any questions, you may want to consider pleading the Fifth to all questions. In most states, answering certain questions will automatically cause you to waive your right to plead the Fifth if you answer certain other questions.

First, activists should remember that security is of utmost importance always, not just when there is a lawsuit or criminal case pending. By always practicing sound security, activists can avoid cause for concern later on.

There are two typical situations for activists caught in the civil discovery process. Usually, the person from whom information is being sought is either a defendant or a witness. A witness who is not a defendant in the case is probably in the best position. In the past, activists who have been called to a deposition to testify and were not parties to the lawsuit have seen no reason to offer any information at all to the opponents. Thus, their strategy was simple: plead the Fifth to every single question asked. With this method, there is no concern over waiving the Fifth by answering some questions and not others, and there is no question about unwittingly divulging any damaging information to the opponent, because they receive no information at all.

On the other hand, if the individual subpoenaed to give testimony or written evidence is a defendant in the case, the issues become a bit more complex. If you are a defendant and refuse to answer any questions in depositions, you may waive your right to enter much of a defense at trial. Furthermore, if you refuse to answer a question in depositions, you cannot later offer the information at trial. Defendants still have the option of pleading the Fifth, especially if there is an ongoing criminal case. In some instances, answering a handful of questions can be useful in that it allows one to put on more of a defense at trial. Again, just remember that like any form of interrogation, seemingly innocent questions in a deposition can be very damaging.

An interesting tactic used during the civil deposition process is to write down every single question asked. If an answer is given, record that as well. Take detailed notes, but do not write anything that would imply knowledge that wasn’t admitted during testimony (e.g., they ask about John Activist and you write “Johnny” in your notes). Taking notes annoys the attorneys taking the deposition, and it allows the activist to have a written record of the deposition. If any questions related to any other activist or organization arise during the deposition, they should be notified and informed of the line of questioning.

Finally, there is the written portion of discovery: interrogatories, requests for admissions, and requests for production. These should be treated in a similar manner: only give information that is relevant, necessary to your case, and required by law. Remember: it is illegal to suppress evidence, but if you do not know the information or do not have the evidence in your possession, then you cannot offer it. Refer to the guidelines above for what to disclose.

In depositions and written discovery, several objections can be made to most questions. The most common objections are irrelevant, overbroad, and attorney-client privilege. One standard for questions in discovery is that they must be reasonably calculated to lead to the admission of relevant evidence. Therefore, questions must relate directly to the issues at hand. One benefit to having a lawyer is that you then have attorney-client privilege, which further protects you from disclosing certain pieces of information. Consult your lawyer for a better idea of what falls under this privilege. During depositions, you can assert these privileges and refuse to answer questions. However, a judge may later order you to answer the question, as she or he would in trial. Again, to avoid offering information, the Fifth should be used whenever possible.

Be forewarned that if information is refused based on an objection or the Fifth, the opposing attorneys will likely make threats of further legal action. Many times, these are empty threats to coerce you into answering. Occasionally, they will file a Motion to Compel, asking the Court to order you to answer a question. Here, depending on what the reason is for refusal, the Court may or may not order you to respond. At that point, you must determine the implications of answering the question. If the question is at all related to others (including an organization), it is probably best to treat it like a grand jury and refuse to participate. It may take some sacrifice to avoid selling out your comrades, but keeping quiet on questions about others is the only appropriate response.

Consulting a lawyer on how to deal with these situations may be helpful, but remember: a lawyer has only your interests in mind, not those of anyone else or the greater movement. Additionally, trying to play the game of outsmarting the other side is dangerous. By only answering seemingly harmless questions about others, an activist could be handing the other side crucial information they need. Just as with grand juries or any other form of interrogation, activists should refuse to give information about others in depositions.

To learn more about the civil process, make use of your local law library. Also, Nolo Press offers a number of excellent books on representing yourself in court. Even if you are not electing to represent yourself, familiarizing yourself with the process so that you can make informed decisions is highly recommended.

Most importantly, keep in mind that all the information our opponents get on us is information that we or other activists make available. By practicing good security all of the time, we can often avoid ending up in civil or criminal courts in the first place. If, however, we do end up there, it is essential not to let our guard down. The new weapon of choice for our opponents seems to be civil suits. As activists, it is our job to learn about this weapon, how to disarm it, and, in the end, render it useless.