June 18, 2020 Articles

Depositions: You Can’t Do That

The old practice of deposition obstruction has been rendered improper and potentially sanctionable.

By Michael Schwarz

Decades ago, even before the first computers, deposition practice was a game of obstruction. Some lawyers, who shall remain nameless (but we all know who they are!), would object to just about every question; and those objections would rattle on for pages and pages of the deposition transcript. The objections would coach the witness, instruct the witness not to answer, and obstruct the truth-finding process. The depositions became pretty much worthless when it came to resisting or moving for summary judgment or impeachment at trial. It was awful.

Then, in the summer of 1993, Judge Gawthrop issued the landmark case of Hall v. Clifton Precision. 150 F.R.D. 525 (E.D. Pa. 1993). This decision was a precursor to the 1993 amendments to the Federal Rules of Civil Procedure effective December 1, 1993. 1993 Amendments to the Federal Rules of Civil Procedure, 146 F.R.D. 401, 648–66 (1993). This was a massive revision to deposition practice, rendering the old practice of deposition obstruction improper and potentially sanctionable.

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