In civil practice, most lawyers would agree that the deposition is the most important discovery tool. Unlike interrogatory responses (wordsmithed by your opposing counsel), requests for admission (same) and requests for production (the documents are what they are) depositions are living, breathing events that can dramatically alter the trajectory of a case. Depositions allow a lawyer to plumb the depths of his case, explore his theories, lock witnesses into factual positions, and, hopefully, get “soundbites” to leverage at summary judgment or trial.
Yet, despite their importance, much of what lawyers have learned about deposition practice is anecdotal “tips of the trade” passed down by more senior attorneys. In reality, many of these beliefs about deposition practice are wrong, running afoul of the plain text of the Federal Rules of Civil Procedure, case law, and even, in some instances, local district court rules. This article will discuss a commonly misunderstood aspect about deposition practice, specifically, deposition objections.
A common source of friction at any deposition is deposition objections. Your opposing counsel not only dislikes your objections but he or she doesn’t like the way you’re making them. Before taking or defending a deposition, then, it is helpful to review the rules and case law governing deposition objections.
What objections may I assert at a deposition?
To start, what objections can a lawyer make at a deposition? Based on the Federal Rules of Civil Procedure and federal case law, one can divide the universe of potential deposition objections into three categories: (a) green light objections; (b) red light objections; and (c) yellow light objections.
Green Light Objections
The Federal Rules of Civil Procedure expressly allow a lawyer to assert certain objections. See Fed. R. Civ. P. 30(c)(2). Indeed, according to the rules, if a lawyer does not assert certain objections during the deposition, he or she waives them (i.e., he or she cannot lodge the objection at any future trial or hearing). See Fed. R. Civ. P. 32(d)(3)(B)(i). These objections are:
Of these seven objections, the first objection—an objection to “the form of a question or answer”—requires more commentary. So-called “form” objections really refer to an entire category of more specific objections. In short, when a lawyer objects to the form of a question, he or she is not objecting because the question seeks impermissible content. Rather, the lawyer is objecting to the manner in which the question was asked. Even among lawyers who like to argue about everything, there are certain objections that most would agree qualify as form objections. The chart below is illustrative:
Of course, finding universal consensus on what qualifies as a form objection is near impossible. For example, some courts have expanded the list of form objections to cover objections like “speculation” and “argumentative,” See, e.g., NGM Ins. Co. v. Walker Constr. & Dev., LLC, No. 1:11-CV- 146, 2012 WL 6553272, at 2 (E.D. Tenn. Dec. 13, 2012); Harper v. Griggs, No. 04-260-C, 2007 WL 486726, at 2 (W.D. Ky. Feb. 12, 2007), while others have said that certain objections listed above—e.g., ambiguous/vague—are not proper form objections. Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012) (“An objection that a question is ‘vague’ is usually, and in this instance was, a speaking objection disguised as a form objection. It essentially expresses a concern that the witness may not understand the question. Only the witness knows whether she understands a question, and the witness has a duty to request clarification if needed.”). Still, generally speaking, the objections listed above can be called “safe” form objections. Unlike other objections, these objections focus on the improper manner of the questions themselves, not the content that the questions seek to elicit.
Red Light Objections
The Federal Rules of Civil Procedure also helpfully identify impermissible deposition objections. Under Rule 32(d)(3)(A), if a party at a deposition fails to object to the competency, relevancy, or materiality of testimony, such objections are not waived. And, Rule 30(c)(2), which states that objections should be stated “concisely in a nonargumentative and nonsuggestive manner,” bars speaking objections.
Although almost any lawyer knows a speaking objection when he or she hears it, an example is worth providing here. Rather than saying “Objection. Foundation,” the lawyer specifically outlines the alleged problem with the foundation. See, e.g., Garner v. Mohave Cnty., No. CV-15-08147-PCT-PGR, 2016 WL 363653, at *1 n.1 (D. Ariz. Jan. 29,2016) (citing the following objection as an example of an improper speaking objection: “Also object on the basis of foundation as this document. It says 11/25 of 2014 was the adoption date so that’s after Karen Garner’s incident just for the record.”). The problem with such questions is that they are vehicles to coach the witness.
Beyond these objections, courts have also consistently found that an objection is inappropriate if it includes an instruction to the witness that he or she should answer only “if you know.” Latele Television, C.A. v. Telemundo Commc’ns Grp., LLC, No. 12-22539-CIV, 2014 WL 5816585, at 10 (S.D. Fla. Nov. 10, 2014) (“[T]he Undersigned considers an ‘if you know’ comment to a deponent before he or she answers a deposition question to usually be improper coaching, designed to signal the witness to answer that he or she does not know or remember the answer.”); Cincinnati Ins. Co., 2012 WL 28071, at 5 (“Instructions to a witness that they may answer a question ‘if they know’ or ‘if they understand the question’ are raw, unmitigated coaching, and are never appropriate.”) (emphasis in original). The chart below is illustrative:
Of course, Rule 32(d)(3) does allow a lawyer to object on these grounds in a limited circumstance: where “the ground for [the objection] might have been corrected at that time.” Fed. R. Civ. P. 32(d)(3)(A). How such a limited circumstance might arise is clear in some cases and less clear in others. Take, for example, an objection as to the competence of the deponent. Suppose a lawyer asks the deponent to opine on whether a particular signature was the signature of the lawyer’s client. If an insufficient foundation has been laid for that question, a lawyer might object to the “competence of the deponent” to identify the signature in question. See, e.g., Klayman v. Judicial Watch, Inc., 297 F. Supp. 3d 80, 83 n.1 (D.D.C. 2018). The lawyer questioning the witness could presumably “correct” such a deficiency by laying an appropriate foundation. By contrast, as at least one court has recognized, it is hard to see how an objection to the relevance of testimony could be corrected by the questioner. In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 618 (D. Nev. 1998) (“It is difficult to conceive of the likelihood that a question which calls for irrelevant information can be ‘cured’ by restating the question, unless the question is changed to ask for relevant (i.e., different) information. Accordingly, it would be rare that an irrelevant question could be cured.”).
Yellow Light Objections
As the prior discussion makes clear, the federal rules identify proper and improper deposition objections. Unfortunately, that leaves a long list of objections unaddressed by the rules. One could argue that, so long as these unaddressed objections are established trial objections, a lawyer can assert them at a deposition. This is because, under Federal Rule of Civil Procedure 30(c)(1), “[t]he examination and cross-examination of a deponent proceed as they would at trial[.]” Fed. R. Civ. P. 30(c)(1). If an objection is a legitimate trial objection, the logic goes, it is a fair objection to make a deposition. Below is a non-exhaustive list of established trial objections. Where the objection in question has case law or rule-based support, the author has added a citation.
Of course, one should exercise caution when it comes to these objections. Although Rule 30(c)(1) provides support for asserting them, some courts have found that some objections on this list qualify as inappropriate deposition objections.Meyer Corp. U.S. v. Alfay Designs, Inc., No. CV 2010 3647 (CBA) (MDG), 2012 WL 3536987, at 3 (E.D.N.Y. Aug. 13, 2012) (“First, I find that certain objections made by Dean Dickie, plaintiff ’s counsel, during the course of depositions, particularly that of Vincent Siano, were suggestive and inappropriate. These include objections which included comments that questions called for speculation, were vague or were ambiguous.”); AKH Co. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2016 WL 141629, at 4 (D. Kan. Jan. 12, 2016) (“It is improper to instruct a witness not to answer a question because it lacks foundation or has been asked and answered.”). One should always consider what, if anything, the judge presiding over his or her case has said about appropriate/inappropriate deposition objections.
How should I assert objections at a deposition?
If you have taken or defended a deposition, you have likely heard or even uttered the following four words: “Objection as to form.” A lawyer may have even chastised you for objecting in a different way, claiming that you were “coaching the witness.” Under the Federal Rules of Civil Procedure, such a rebuke is unfounded.
Again, under Federal Rule of Civil Procedure 30(c)(1), “[t]he examination and cross-examination of a deponent proceed as they would at trial[.]” Fed. R. Civ. P. 30(c)(1). Of course, at a trial, if a lawyer were to stand up when his or her witness is being questioned and proclaim, “Objection as to form,” it would likely engender a stern look from the presiding judge, who would either overrule the objection or ask the lawyer to be more specific. And, as the previous discussion makes clear, there are several “proper” deposition objections and “proceed with caution” deposition objections that are not, technically, objections to the form of the question. In such an instance, objecting to form would make no sense.
Ultimately, then, when objecting at a deposition, a lawyer should state the objection “concisely in a nonargumentative and nonsuggestive manner.” Fed. R. Civ. P. 30(c)(2). By way of example, “Objection. Leading.” Many courts have endorsed this practice. See Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at 1 (M.D. Ga. Aug. 14, 2014) (“[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question … When ‘objection to form’ does not indicate what is wrong with the form so that the questioner can correct the problem, it becomes nothing more than a statement that the objector finds the question ‘objectionable.’”); Vargas v. Fla. Crystals Corp., No. 16-81399-CV, 2017 WL 1861775, at 6 (S.D. Fla. May 5, 2017) (“In sum, under the Federal Rules of Civil Procedure, a mere unspecified ‘form’ objection is insufficient to comply with the spirit, intent and language of Rules 30(c)(2) and 32(d)(3)(B).”); Wise v. Washington Cty., No. 10-cv-1677, slip op. at 16 (W.D. Pa. Mar. 7, 2014) (“Objections to form must sufficiently explain the objection so that the interrogator is able to revise the question and avoid the problem.”).
Of course, there are some courts that insist that a lawyer say only “objection as to form.” Druck Corp. v. Macro Fund (U.S.) Ltd., No. 02 CIV.6164(RO) (DFE), 2005 WL 1949519, at 4 (S.D.N.Y. Aug. 12, 2005) (“Any ‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason.”); In re St. Jude Med., Inc., No. 1396, 2002 WL 1050311, at 5 (D. Minn. May 24, 2002) (“Objecting counsel shall say simply the word ‘objection’, and no more, to preserve all objections as to form.”); Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at *5 (“[S]uch an objection to avoid a suggestive speaking objection should be limited to an objection ‘to form,’ unless opposing counsel requests further clarification of the objection.”). Although the author thinks that these cases conflict with the plain text of Federal Rule of Civil Procedure 30(c) (1), one should always consider a more basic rule—“know your audience.” If you are practicing before a “form only” court, you should of course follow the court’s rules.
Before moving on, it is worth adding a word about waiver. According to many lawyers, if you generically object to form only and don’t get more specific, you have safely preserved every form objection in the world for use at a later hearing or trial. If you get more specific, these same lawyers will tell you, you have waived your ability to assert any form objections other than the specific one you lodged at the deposition. So, the logic goes, objecting to form is the more conservative and better approach to objecting at depositions.
The premise of this advice is suspect. Numerous courts have held that, if a lawyer objects only to form, he has preserved nothing at all. Fletcher v. Honeywell Int’l, Inc., No. 3:16-CV-302, 2017 WL 775852, at *1 (S.D. Ohio Feb. 28, 2017) (“To the extent that counsel made a generic objection to ‘form,’ but failed to specify the basis for the objection, the Court also considers those objections to be waived.”); Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 602 (N.D. Iowa 2014) (“Nothing about the text of Rules 30 or 32 suggests that a lawyer preserves the universe of ‘form’ objections simply by objecting to ‘form.’”). As a result, if you plan to object to form only, you should confirm that such an approach does not risk waiver.
Conclusion
When it comes to taking depositions in federal cases, being forewarned is being forearmed. A quick review of your district court’s local rules, your judge’s positions when it comes to deposition objections (if available), and any relevant case law will ensure that you and your opposing counsel honor the rules both on and off the record. The author hopes that this article will give you some leads when it comes to identifying the relevant guidelines for compliance.