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Making the Record: Three Lessons for Making and Preserving Deposition Objections

Andrew McLure Toft


  • Lesson 1: Know the rules.
  • Lesson 2: Know the opposing counsel.
  • Lesson 3: Know the judge.
Making the Record: Three Lessons for Making and Preserving Deposition Objections
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When taking depositions for a proceeding in federal court, it is critical to (a) understand Fed. R. Civ. P. 30 and Fed. R. Civ. P. 32 and the related committee comments; (b) address with opposing counsel, before a discovery deposition begins, how objections will be made during the deposition; and (c) become familiar beforehand with how the presiding judge evaluates the adequacy of deposition objections in the event of a dispute.

Otis v. Demarasse, No. 16-C-285 (E.D. Wis. Apr. 22, 2019), provides an example of these principles in play. After her arrest for operating while intoxicated (OWI), the plaintiff sued the arresting officer for civil-rights violations under 42 U.S.C. § 1983. The plaintiff then noticed the deposition of the nonparty sheriff’s deputy who had helped the arresting officer evaluate her level of impairment. The sheriff’s deputy retained his own counsel for the deposition.

After only 70 minutes of questioning, plaintiff’s counsel terminated the deposition to move for sanctions against the deputy’s counsel. The deputy’s counsel had objected 39 times during the deposition, generally stating “object as to form” before instructing his client to answer. In some cases, though, the deputy’s counsel had added “vague” or “foundation” to his objection. Plaintiff’s counsel argued that the frequency of objections—one for every two minutes of questioning—was improper. And plaintiff’s counsel was particularly incensed by the refusal to accept his offer of a standing objection “on any basis you can think of to any question.”

After a close review of the deposition transcript, the court denied the motion for sanctions in its entirety. And in doing so, the court offered practitioners three important lessons.

Lesson 1: Know the rules. Rule 32(c)(2) requires that an objection be stated “concisely in a nonargumentative and nonsuggestive manner.” The court summarized the objections made by the deputy’s counsel as falling within the category of “form” objections, which include objections based on leading questions, lack of foundation, assuming facts not in evidence, mischaracterization, vague or misleading questions, lack of personal knowledge, speculative, asked and answered, argumentative, and compound questions. Critically, these are the types of objections that the comments to Rule 30 suggest must be made during the deposition, because they are the type of issues that can be immediately cured.

Moreover, these “form” objections can be waived if not raised. The court thus held that the deputy’s counsel was correct to refuse the offer of a continuing objection, which generally applies only to an improper line of questioning. The court also made clear that there is no upper limit on objections; a party may object in the proper format whenever the rules of civil procedure or evidence are not being followed.

Lesson 2: Know the opposing counsel. While Rule 32(c)(2)’s requires an objection be stated “concisely in a nonargumentative and nonsuggestive manner,” counsel should agree prior to the deposition whether a “form” objection, without more, waives a more specific objection such as “vague” or “foundation.” Reaching an agreement on this issue can help avoid disputes like that in Otis, where plaintiff’s counsel believed that the deputy’s counsel was coaching the witness when he stated “vague” or “foundation.”

Lesson 3: Know the judge. Even if counsel reach an agreement on preserving objections, the court is not necessarily bound to follow it. Courts have reached different conclusions on whether a “form” objection is sufficient to preserve a more specific objection to vagueness or foundation. Knowing the judge’s approach to objections can thus smooth the conduct of the deposition and ensure that all objections are preserved.

Knowledge is power. Otis is an example of one lawyer being conversant with the rules while opposing counsel was less conversant, with an avoidable discovery dispute being the result.