Speaking Objections Risk Sanctions

Every litigator at some point must deal with so-called speaking objections of opposing counsel during a deposition. These are statements that go beyond just stating the objection or the basis for the objection and are intended—or at least suspected of being intended—to coach the witness and impede the deposing attorney’s discovery. In most cases, a polite request to refrain from speaking objections is sufficient to convince opposing counsel to moderate his or her conduct. But in extreme cases, the deposition can be materially affected and can lead to a request for (and an award of) sanctions.

In Biax Corp. v. NVIDIA Corp., 09-cv-01257 (D. Colo. Jan. 7, 2011) (unreported), the defense brought a motion to strike the declaration of a witness in support of the plaintiff’s motion for summary judgment, arguing that at the witness’s deposition, the plaintiff’s counsel had “openly coached his witness, made long speaking objections, and instructed the witness not to answer a question even when there was no privilege objection.” The plaintiff responded that all he did was “object to objectionable questions.”

The local rules in the District of Colorado, as in many state and federal jurisdictions, do not permit objections that have the effect of coaching a witness (speaking objections), and do not permit an attorney to instruct the witness not to answer a question except to preserve a privilege, or in compliance with a court order, or to present a motion to the court concerning the question(s) posed.

The court reviewed the transcript and while it found the plaintiff’s counsel’s conduct sanctionable, it stopped short of striking the witness’s declaration. The court instead awarded costs and fees for the deposition and for briefing the motion, allowed further deposition of the witness, warned that “Counsel for Plaintiff is on notice,” and stated that if the rules concerning objections were violated again, “the Court would be inclined to grant the relief requested by Defendant.”

Zealous representation of your client does not include violating the rules relating to discovery. It can be too easy at times to forget the boundaries of professionalism, but doing so may expose counsel and their clients to sanctions.