Trial Magazine

A well-established body of jurisprudence governs conduct and objections at depositions, and following the rules is essential to the fair development of facts and cases. To allow free access to information during the deposition, all objections to deposition testimony are preserved for trial, unless the basis for the objection is one that might have been corrected if raised at the deposition.¹

“The rules distinguish objections to the manner of taking the deposition from objections as to the substance of the testimony.”² Evidentiary objections to substance—such as relevance, competence, and materiality—are not waived by failure to object during the deposition.³ Those objections are unnecessary and inappropriate at the time of the deposition. Attorneys who understand these “rules of engagement” will have a road map for maintaining civility and professionalism in their deposition practice.

Proper Objections

Procedural objections to the manner of taking the deposition. Federal Rule of Civil Procedure 32(d)(3)(B)(i) identifies which objections must be raised at the deposition to preserve them for trial: “An objection to an error or irregularity at an oral examination is waived if: (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time.”⁴ If objections to correctable errors are not raised promptly at the deposition, those objections are waived.

Objections to deposition questions. Objections to questions during depositions fall within three general categories:

1. Objections asserting that the substance of the testimony would be inadmissible at trial. Whether testimony is inadmissible can be decided only by the court. Those objections are preserved for trial and are improper during the deposition.

2. Objections to immediately correctable evidentiary issues (“objections to foundation”). If the lawyer can cure an evidentiary problem, such as the failure to establish that the witness has personal knowledge, such an objection must be made during the deposition. Rule 32(d)(3)(A) requires lawyers to raise correctable evidentiary issues at the deposition.

An objection to a deponent’s competence, relevance, or materiality of testimony is not waived by a failure to object before or during the deposition unless the ground for it might have been corrected at that time.⁵

The inclusion of “competence” in the rule causes confusion because competence objections are explicitly preserved for trial, yet the rule also requires raising objections to immediately correctable evidentiary defects in the questions. Understanding the distinction between Federal Rules of Evidence 601 and 602 resolves this confusion.

Rule 601 requires a witness to have the mental capacity to testify. That objection is preserved, because it cannot be corrected at the deposition. Rule 602 requires a witness to have personal knowledge of the facts for the testimony to be admissible—commonly known as foundation. If there is a question as to whether the witness has personal knowledge, questions can be asked to clarify that record.

3. Objections to how a question is phrased (“objections to form”). How a question is phrased can be corrected if improper. Therefore, objections to correctable form errors must be made at the time of the deposition.

Objections to foundational errors differ from objections to form: The former relate to the failure to establish that the witness has personal knowledge while form objections involve the improper structure of the question itself.⁶

Proper objections must be concise, nonargumentative, and nonsuggestive. When raising any objections at the deposition, lawyers must tread carefully. There is a precarious balance between preserving an objection and coaching the witness.⁷ Whether an objection is appropriate must always be evaluated based on the requirement that all objections be concise, nonargumentative, and nonsuggestive.⁸

How to object to correctable errors of substance and form: two schools of jurisprudence. Federal Rule of Civil Procedure 30(c)(2) requires all objections to “be stated concisely in a nonargumentative and nonsuggestive manner.”⁹ However, Rules 32(d)(3)(A–B) also require attorneys to raise objections to form, substance, and other matters that “might have been corrected at that time” to preserve them for trial.

To the extent a required objection suggests how the deponent should answer the question, the rules conflict. The method of stating the objection is critical to reconciling this tension. Courts have created two contradicting approaches to properly raising objections at depositions.

Approach 1: “objection to form” only. Any explanation of the ground for the objection, no matter how concise, suggests a preferred answer to the deponent. In response, courts have banned any explanation of the ground for an objection unless the examining attorney requests it.¹⁰

Approach 2: “objections to form or foundation” require a concise explanation. Other courts have expressed frustration with repeated deposition disruptions due to often unfounded objections to form, which ultimately require extensive judicial rulings. These courts require counsel to specify the defect in the objection without suggesting how a question should be answered.¹¹ This second approach creates a Herculean task for attorneys defending depositions. Any explanatory word embedded in the objection is inherently suggestive to a perceptive witness. Once the cue is given, a Pavlovian response from the witness often follows.¹²

Prohibited Objections

Objections to the inadmissibility of the substance of testimony are prohibited. Rule 32(d)(3) preserves for trial all objections to the admissibility of the testimony’s substance, except objections that could notify the examiner of a correctable evidentiary defect. Competence, relevance, and materiality of a witness are preserved for trial under Rule 32(d)(3)(A).¹³ Regardless of how the question is asked, admissibility will be determined by the judge at trial. There is no way to rephrase an examiner’s question to cure these purported evidentiary defects.

The purpose of allowing objections to be raised later is to permit the preliminary examination to proceed without constant interruptions.¹⁴ Interference with the deposition’s orderly flow and the meaningful elicitation of testimony by excessive objections is prohibited.¹⁵ Therefore, objections not required to be asserted at the deposition are inappropriate if raised then.¹⁶

Relevance objections. Relevance objections are expressly reserved by Rule 32(d)(3)(A).¹⁷ Relevance is not a curable evidentiary issue. Whether a line of inquiry is relevant will be determined by the judge. Therefore, relevance objections are improper during the deposition.

Beyond the scope objections. An objection that questions are “beyond the scope” of permissible discovery is functionally the same as objections to relevance. In Cincinnati Insurance Co. v. Serrano, the court explained that scope objections do not pertain to questions of evidentiary admissibility.¹⁸

Witness Coaching During a Deposition Is Universally Prohibited

“[T]he law clearly prohibits a lawyer from coaching a witness during a deposition.”¹⁹ Prohibited witness coaching includes coaching under the guise of meritorious objections, as well as blatant instructions. Despite the Federal Rules’ prohibition on witness coaching, some lawyers prompt witnesses to give particular, desired answers to the examiner’s questions in numerous subtle and ­not-so-subtle ways.

Speaking objections occur when the defending lawyer uses objections and interruptions to suggest answers to the deponent.²⁰ When witnesses are coached through objections, they often parrot the lawyer’s comment in the answer.²¹ Rule 30(c)(2) prohibits this form of witness coaching.²²

“If you know” interjections. The tactic of concluding objections by telling the witness “you can answer if you know” is prohibited coaching. The district court in Cincinnati Insurance Co. explained that, “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;” the court warned that this type of speaking objection is sanctionable misconduct.²³

Objecting to vagueness. “An objection that a question is ‘vague’ is . . . a speaking objection disguised as a form objection. It essentially expresses a concern that the witness may not ­understand the question.”²⁴

Attorney’s concern for client’s lack of understanding. An attorney’s concern that the witness may not understand the question is not relevant: “Only the witness knows whether she ­understands a question, and the witness has a duty to request clarification if needed. This duty is traditionally explained to the witness by the questioner before the deposition.”²⁵

Lawyer’s “lack of understanding.” A claim that the lawyer doesn’t ­understand the examiner’s question is never proper.²⁶ A lawyer’s alleged lack of understanding is unequivocally an impermissible speaking objection. In Hall v. Clifton Precision, the court explained: “If the witness needs clarification, the witness may ask the deposing lawyer for clarification. A lawyer’s purported lack of ­understanding is not a proper reason to interrupt a deposition.”²⁷

Reinterpreting or rephrasing the examiner’s questions. Reinterpreting and rephrasing questions are prohibited witness coaching. This practice gives the witness additional information to consider, and it suggests how the defending lawyer would like the answer to be framed. When a lawyer acts as an intermediary, the deposition is no longer a question-and-answer session between the examiner and the witness.²⁸

“Asked and answered” interjections. The interjection “asked and answered” is a prohibited coaching technique lawyers use to disrupt the examining attorney’s probing of the validity of the testimony by cross examining with a rephrased question. “Asked and answered” is simply a speaking objection that signals to the witness how to answer the question.

Excessive objections. Strategically disrupting the deposition with objections impedes the examination. The Advisory Committee Notes to Rule 30 explain that making “an excessive number of unnecessary objections may itself constitute sanctionable conduct.”²⁹ If excessive objections during a deposition disrupt the information-seeking process, this conduct may be ­sanctionable under Rule 30(d)(2), regardless of the individual objections’ validity.

Instruction Not to Answer

A lawyer defending a deposition does not have the authority to decide which questions the witness should or should not answer.³⁰ The Federal Rules of Civil Procedure establish only three permissible reasons for a valid instruction not to answer a deposition question:

1. to preserve a privilege
2. to enforce a limitation ordered by the court
3. to present a motion to terminate or limit the deposition under Rule 30(d)(3).³¹

Instructing a witness not to answer a question for any other reason is sanctionable.³² Unless the objection falls within one of the three prescribed categories, the testimony is taken subject to any objection, and the examination proceeds.³³

This article includes excerpts from Deposition Obstruction: Breaking Through (AAJ Press 2019) by Mark R. Kosieradzki, www.justice.org/depositionobstruction. Mr. Kosieradzki is a founder of the Kosieradzki Smith Law Firm in Minneapolis and can be reached at mark@koslawfirm.com. Copyright © 2019 Mark R. Kosieradzki.

Notes

1. Fed. R. Civ. P. 32(d)(3).
2. Cabello v. Fernandez-Larios, 402 F.3d 1148, 1160 (11th Cir. 2005) (emphasis added).
3. Fed. R. Civ. P. 32(d)(3)(A); see Cincinnati Ins. Co. v. Serrano, 2012 WL 28071, at *4 (D. Kan. Jan. 5, 2012).
4. Fed. R. Civ. P. 32(d)(3)(B)(i).
5. Fed. R. Civ. P. 32(d)(3)(A) (emphasis added).
6. Kirschner v. Broadhead, 671 F.2d 1034, 1037–38 (7th Cir. 1982); Oberlin v. Marlin Am. Corp., 596 F.2d 1322, 1328 (7th Cir. 1979); Elyria-Lorain Broad. Co. v. Lorain Journal Co., 298 F.2d 356, 360 (6th Cir. 1961).
7. See Fed. R. Civ. P. 30(c)(2) for the proper procedure for objecting at an oral deposition. 
8. Id.
9. Id.
10. See Damaj v. Farmers Ins. Co., Inc., 164 F.R.D. 559, 561 (N.D. Okla. 1995); Auscape Int’l v. Nat’l Geographic Soc’y, 2002 WL 31014829, at *1 (S.D.N.Y. Sept. 6, 2002); Turner v. Glock, Inc., 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004); In re St. Jude Med. Inc., 2002 WL 1050311, at *5 (D. Minn. May 24, 2002); Meyer Corp. US v. Alfay Designs, Inc., 2012 WL 3536987, at *4 (E.D.N.Y. Aug. 13, 2012); Valencia v. City of Santa Fe, 2013 WL 12180535, at *2 (D.N.M. Jan. 11, 2013); Quantachrome Corp. v Micromeritics Instrument Corp., 189 F.R.D. 697, 701 n.4 (S.D. Fla. 1999); Applied Telematics, Inc. v. Sprint Corp., 1995 WL 79237, at *1 (E.D. Pa. Feb. 22, 1995); see also Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 2013 WL 6439069, at *4 (S.D.N.Y. Dec. 9, 2013).
11. See Vargas v. Fla. Crystals Corp., 2017 WL 1861775, at *6 (S.D. Fla. May 5, 2017); Fletcher v. Honeywell Int’l, Inc., 2017 WL 775852, at *1 (S.D. Ohio Feb. 28, 2017); Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 602–03 (N.D. Iowa 2014); Henderson v. B&B Precast & Pipe, LLC, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014); Ethox Chem., LLC v. The Coca-Cola Co., 2016 WL 7053351, at *7 (D.S.C. Feb. 29, 2016); Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 2011 WL 4526141, at *8 (S.D.N.Y. Sept. 21, 2011).
12. To address this witness coaching concern, the judge in Boswell v. Cnty. of Sherburne (No. 4-86-156 (D. Minn. Feb 26, 1986))ordered that all objections be restricted to stating the word “objection” and the evidence rule (by number only) alleged to have been violated.
13. Fed. R. Civ. P. 32(d)(3)(A).
14. David F. Herr & Roger S. Haydock, Civil Rules Annotated §30.22 (3d ed. 1998); see also Fed. R. Civ. P. 30, 1993 advisory committee’s note subd. d. 
15. See In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 616–19 (D. Nev. 1998) (citing Am. Directory Serv. Agency, Inc. v. Beam, 131 F.R.D. 15, 18–19 (D.D.C. 1990)); see also Fed. R. Civ. P. 30(d)(2).
16. Herr & Haydock, supra note 14, at 107.
17. See Hall v. Clifton Precision, a Div. of Litton Sys., Inc., 150 F.R.D. 525, 528 (E.D. Pa. 1993).
18. Cincinnati Ins. Co., 2012 WL 28071, at *5.
19. The Sec. Nat’l Bank of Sioux City, Iowa, 299 F.R.D. at 604; see also Hall, 150 F.R.D. at 530. 
20. Applied Telematics, Inc. v. Sprint Corp., 1995 WL 79237, at *1 (E.D. Pa. Feb. 22, 1995).
21. McDonough v. Keniston, 188 F.R.D. 22, 24 (D.N.H. Nov. 1998); see also Cordova v. United States, 2006 WL 4109659, at *3 (D.N.M. July 30, 2006).
22. See Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010) (citing Jadwin v. Abraham, 2008 WL 4057921, at *6–7 (E.D. Cal. Aug. 22, 2008)); Heriaud v. Ryder Transp. Servs., 2005 WL 2230199, at *2–9 (N.D. Ill. Sept. 8, 2005); AG Equip. Co. v. AIG Life Ins. Co., 2008 WL 5205192, at *2–4 (N.D. Okla. Dec. 10, 2008); Deville v. Givaudan Fragrances Corp., 2010 WL 2232718, at *6–8 (D.N.J. June 1, 2010)); see also Applied Telematics, 1995 WL 79237; McDonough, 188 F.R.D. at 24.
23. Cincinnati Ins. Co., 2012 WL 28071, at *5 (emphasis added).
24. Id. 
25. Id. 
26. Applied Telematics, 1995 WL 79237, at *2 (citing Hall, 150 F.R.D. at 530 n.10).
27. Hall, 150 F.R.D. at 530 n.10.
28. Id. at 528; see Alexander v. F.B.I., 186 F.R.D. 21, 52–53 (D.D.C. 1998).
29. Fed. R. Civ. P. 30(d), 1993 committee’s note subd. d; see also Morales v. Zondo, Inc., 204 F.R.D. 50, 54–57 (S.D.N.Y. 2001).
30. See Hall, 150 F.R.D. at 528.
31. Fed. R. Civ. P. 30(c)(2); see Fed. R. Civ. P. 30(d)(3)(A).
32. Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977); Detoy v. City & Cnty. of S.F., 196 F.R.D. 362, 365–66 (N.D. Cal. 2000); Boyd v. Univ. of Md. Med. Sys., 173 F.R.D. 143, 144–47 (D. Md. 1997); Int’l Union of Elec., Radio & Mach. Workers AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277, 279–80 (D.D.C. 1981); Preyer v. U.S. Lines, Inc., 64 F.R.D. 430, 431 (E.D. Pa. 1973).
33. Fed. R. Civ. P. 30(c)(2).