Abusive deposition tactics frustrate the truth-finding process
in litigation. What are the proper limits of these objections?

It was the end of a long day of depositions in a tense medical malpractice
case (failure by a family practitioner to recognize and treat
pre-heart-attack symptoms). The deponent, a treating doctor friendly with
the defendant, had just dropped a bombshell of sorts.

The defendant had ordered and supervised an ETT (exercise treadmill test),
which he had read as normal; the next day our deponent read the test as
abnormal (i.e., positive, showing the presence of pre-heart-attack ischemia).

The deponent's bombshell was the heretofore unknown revelation that the
defendant usually did a written interpretation of the test, which our
deponent would then "overread." This "overread" was absent from the medical
chart. It could prove that the defendant did indeed render an erroneous
interpretation of the ETT (now denied), as well as suggesting possible
spoliation of evidence. The following colloquy ensued:

Plaintiff attorney: In your experience, does [the defendant] usually write
a preliminary interpretation?

Witness: I don't keep track.

Plaintiff attorney: Well, then, just from memory.

Defense attorney: Argumentative and asked and answered.

Plaintiff attorney: Go ahead. Isn't your best recollection, Doctor, that he
generally writes a report?

Defense attorney: Objection. Argumentative and asked and answered.

Witness: It's really quite variable, and I don't keep track.

Plaintiff attorney: You don't have any recollection of that at all, what
his general practice is?

Defense attorney: Objection. Asked and answered. Argumentative.

Witness: Again, I'm not sure what the intent of the question is.

Plaintiff attorney: The nice thing about it is you don't even have to think
about that. All you have to do is answer honestly under oath.

Defense attorney: And he has, two questions back.

Witness: I just answered the question. I said that there is usually, not
always. There's no procedure or policy set but that the primary care
physician writes a preliminary report, and that's a general comment for all
of the physicians, including [the defendant].

The deponent's attorney-induced evasiveness failed, but only after a great
deal of wasted time.

Experienced plaintiff litigators encounter obstreperous deposition
objections all the time. What are the proper limits of these objections?

The Federal Rules of Civil Procedure contain four instructive provisions
relating to the propriety of objections at depositions. First, Rule 30(c)
provides that the examination "of witnesses may proceed as permitted at the
trial" under the rules of evidence.

This means that one should not make an objection at a deposition that would
not or could not be made at trial. How many judges would tolerate counsel
interjecting "if you remember" before the witness answers a question at trial?

Second, Rule 32(d)(3)(A) says, "Objections to the competency of a witness
or to the competency, relevancy, or materiality of testimony are not waived
by failure to make them before or during the taking of the deposition"
(unless the ground of the objection would have been obviated).

Third, Rule 30(d)(1) prohibits "suggestive" objections.

Fourth, Rule 30(d)(1) also says instructions not to answer are allowed only
to "preserve a privilege."


Basically, all objections are preserved until trial or hearing, unless they
go to form or foundation. One commentator observed:

Therefore, the only objections you need be concerned about are as to form
(e.g., leading) and foundation (e.g., that the witness is not in a position
to know the facts which he or she needs in order to testify) because you
won't be able to correct [sic, assert] them later. NOTE 1.

Many of the objections we commonly hear are either inappropriate or they
are unnecessary because they are preserved until trial. These objections
simply hinder the truth-finding process.

The U.S. Supreme Court forever changed the legal landscape on depositions
with Hickman v. Taylor. Prior to Hickman, litigation was often governed by
the "sporting theory of justice," where the outcome of your case depended
on your wits, cunning, and chance availability of evidence. NOTE 2.
Obviously, litigation under this regime was more of a "a battle of wits
rather than search for the truth."

Hickman changed the basic philosophy of discovery from "hide the ball" to
full disclosure of relevant information. As the court said, "[C]ivil trials
in the federal courts no longer need be carried on in the dark. The way is
now clear, consistent with recognized privileges, for the parties to obtain
the fullest possible knowledge of the issues and facts before trial." NOTE 3.

The discovery rules provide a means to ascertain the truth.

The discovery procedures established by rules 26 through 37 may be the most
important provisions of the Federal Rules of Civil Procedure. Embodied in
these rules are philosophical implications essential to the broad objective
of the American civil justice system: to provide for the meaningful
expression of a citizen's right to redress for wrongs done to person or
property. These rules were founded on the premise that access to knowledge
is necessary to ascertain the truth. NOTE 4.

That depositions are an important part of the "access to truth" philosophy
is embodied in Rule 26. Judge Robert Gawthrop, in a much-cited federal
case, Hall v. Clifton Precision, commented on how improper lawyer conduct
can hinder the truth-finding process:

The underlying purpose of a deposition is to find out what a witness saw,
heard, or did-what the witness thinks. A deposition is meant to be a
question-and-answer conversation between the deposing lawyer and the
witness. There is no proper need for the witness's own lawyer to act as an
intermediary, interpreting questions, deciding which questions the witness
should answer, and helping the witness to formulate answers. The witness
comes to the deposition to testify, not to indulge in a parody of Charlie
McCarthy, with lawyers coaching or bending the witness's words to mold a
legally convenient record. . . . Rather, a lawyer must accept the facts as
they develop. NOTE 5.

In Damaj v. Farmers Insurance Co., an insightful judge observed that
"suggestive objections by counsel can tend to obscure or alter the facts of
the case and consequently frustrate the entire civil justice system's
attempt to find the truth." NOTE 6.

Federal Rule 30(d) is specific about deposition abuse:

(2) By order or local rule, the court may limit the time permitted for the
conduct of a deposition, but shall allow additional time consistent with
Rule 26(b)(2) if needed for a fair examination of the deponent or if the
deponent or another party impedes or delays the examination. If the court
finds such an impediment, delay, or other conduct that has frustrated the
fair examination of the deponent, it may impose upon the persons
responsible an appropriate sanction, including the reasonable costs and
attorney's fees incurred by any parties as a result thereof.

Improper objections and tactics

The "better lawyer" in all of us believes in the integrity of the
truth-finding process in civil litigation. Improper deposition objections
and tactics will only frustrate this process. Our duty to find the truth
should not conflict with our duty to zealously represent our clients within
the bounds of the law.

Coaching


"Jungle rules" often prevail at depositions, so we see many "speaking" or
coaching-type objections. One commentator gave the following definition of
coaching: "'Coaching' encompasses many different forms of behavior at a
deposition, including improper objections, improper instructions, and
repeated off-the-record conferences with the deponent. . . . The 'coach,'
of course, is the defending lawyer who subtlyor not so subtlyattempts to
manipulate the deponent's answers." NOTE 7.

Coaching or attempted coaching of a witness is always objectionable.
Federal Rule 30(d)(1) flat-out prohibits it, but a prohibition against
coaching is also clearly the common law in all states, even those that have
not adopted the federal rule.

The Advisory Committee notes on the 1993 amendments to Federal Rule 30
recognize that coaching frustrates the quest for truth. "[Rule 30(d)(1)]
provides that any objections during a deposition must be made concisely and
in a nonargumentative and nonsuggestive manner. Depositions frequently have
been unduly prolonged, if not unfairly frustrated, by lengthy objections
and colloquy, often suggesting how the deponent should respond."
Courts have strongly condemned the many and varied forms of coaching. NOTE 8.

Instructing not to answer

The Rule 30(d)(1) prohibition against instructing a witness not to answer
(except to preserve a privilege) has always been the common law of
depositions. NOTE 9. The Advisory Committee notes to the rule capture the
policy behind this destructive conduct: "Directions to a deponent not to
answer questions can be even more disruptive than improper objections."

These types of admissibility issues are decided by the court, not the
litigants: "It is not the prerogative of counsel, but of the court, to rule
on objections. Indeed, if counsel were to rule on the propriety of
questions, oral examinations would be quickly reduced to an exasperating
cycle of answerless inquiries and court orders."NOTE 10.

The rationale behind requiring a deposition witness to answer questions is
compelling. Deposition objections are treated differently than trial
objections because the testimony continues subject to the objections, and
the objections are preserved for trial. Two commentators explain:

[A] deposition witness is usually required to answer a question when an
objection is made. The logic here is obvious. Because no judge is present,
no ruling on the objection can be made. If the witness were not required to
answer, the deposition would be constantly halted to wait for a ruling. In
addition, because a deposition is not a trial, there is no reason to
exclude the answer because of concerns about admissibility of evidence. . .
. There is another reason a witness is usually required to answer a
question despite an objection. The primary purpose of a deposition is
discovery, and the scope of that discovery is far broader than the scope of
the admissibility standards used at trial. . . . Thus, requiring an answer,
subject to objections, allows for open questioning leading to discoverable
information, whether or not this information will ultimately be admitted at
trial. NOTE 11.

A court has condemned an attorney's instruction to a nonclient witness not
to answer: "He [a party's attorney] had no right whatever to impose silence
or to instruct the witnesses not to answer, especially so when the
witnesses were not even his clients." NOTE 12.

Instructing experts not to answer opinion questions

Instructing experts not to answer opinion questions occurs frequently. This
is not a valid deposition (or trial) objection. The opinions of treating
doctors are merely factual inquiries that are discoverable. In Delcastor,
Inc. v. Vail Associates, Inc., the court noted:

[I]f we assume that Dr. Lampiris is now merely a "fact witness," his
opinions are properly discoverable under ordinary discovery practices
because those opinions appear reasonably calculated to lead to the
discovery of admissible evidence. See Fed. R. Civ. P. 26(b). The
protections afforded by 26(b)(4)(B) were never intended to shield a witness
from full and fair examination. NOTE 13.

"Traditionally, treating physicians have been permitted to express their
opinions of causation and prognosis derived from the ordinary treatment of
the patient."NOTE 14.

Treating physician's can clearly be deposed as to their opinions on the
cause of plaintiff's injuries, which they know only through their
expertise. In Shapardon v. West Beach Estates, the issue of the treating
physician's status arose in the context of an accident in which the
plaintiff was injured when a defendant employee spilled coffee on her. The
defendant moved to exclude the plaintiff's "experts" because the Rule
26(a)(2)(B) report had not been prepared.

The court analyzed the "two types of experts," including those who are not
specifically employed as experts, like treating physicians, and those who
are specifically employed. Regarding treating physicians, the court noted:

Treating physicians commonly consider the cause of any medical condition
presented in a patient, the diagnosis, the prognosis and the extent of
disability, if any, caused by the condition or injury. Opinions as to these
matters are encompassed in the ordinary care of a patient and do not
subject the treating physician to the report requirement of Rule
26(a)(2)(B). NOTE 15.

Objections by counsel for a nonparty witness

Occasionally, a nonparty deponent will bring his or her own attorney to a
deposition. May that attorney make objections for the nonparty deponent?
The answer is "no," since the examination must "proceed as permitted at the
trial" under the rules of evidence.

Federal Rule of Evidence 611(a) provides the court "shall exercise
reasonable control over the mode and order of interrogating witnesses . . .
so as to . . . make the interrogation and presentation effective for the
ascertainment of the truth." It is hard to imagine a trial judge allowing
an independent witness to bring his or her own counsel to trial and make
objections.

Perhaps there are circumstances where courts have allowed this, but it
would seem on the surface to be disruptive to the proceedings and unfair to
the examining attorney to have two attorneys making objections. If it
couldn't or shouldn't happen at trial, it shouldn't happen at a deposition.

Interjections and interruptions

Interjections and interruptions, particularly if frequent, can so disrupt a
deposition as to make it essentially useless. A federal court in Iowa
strongly condemned this practice, noting: "There was no justification for
Mr. Barrett to monopolize 20 percent of his client's deposition. The
'objections' made were for the most part groundless, and were only
disputatious grandstanding." NOTE 16.

Interjections and interruptions can be abusive to the point where sanctions
are warranted under 28 U.S.C. §1927:

Any attorney or other person admitted to conduct cases in any court of the
United States or any territory thereof who so multiplies the proceedings in
any cause unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct.

This statute has been used by several courts under their inherent authority
to hold attorneys responsible for costs incurred due to discovery abuse.
NOTE 17.

"I don't understand your question."

This obnoxious objection is common. Unless the question is really
unintelligible, which sometimes happens, the purpose of this objection is
to coach the witness or mold a convenient record.

Consider the following example from a case where the plaintiffs' injuries
were caused by a thief who stole a key-in-ignition vehicle from an open
service area after the service area had closed but the dealership remained
open. NOTE 18. The witness was being questioned about the lack of security
in the service area on the day of the theft.

Plaintiff attorney: Just so I am clear about this, I asked you whether
there was a camera in the service area that night. Was there any other type
of security or surveillance equipment installed in the service area on the
day of 5/16/92?

Defense attorney: What do you mean by security or surveillance equipment?
Locking doors? Would you include people who were there on the lot?

Plaintiff attorney: I'll bet that your wife never wins an argument with
you. I am not talking about a locked door. I am talking about installed
security or surveillance equipment.

Defense attorney: You are talking about electronics, right?

Plaintiff attorney: Electronic. Maybe you set up a shotgun with a rubber
band to blow people away. Was there any type of security device?

Defense attorney: As opposed to people?

Plaintiff attorney: Yeah.

Defense attorney: As opposed to the locking doors?

Plaintiff attorney: Was that a no?

Witness: Is that in regards to electronic equipment?

Basically, defense counsel claimed not to understand the question in order
to suggest to the witness that the witness should answer the question about
security by pointing out that "people" remaining on the lot constituted the
"security."

This technique has been strongly condemned by many courts. Frequently--in
fact, usually--the witness doesn't even claim that the questions are unclear.

In Hall v. Clifton Precision, the court first noted that "there is no
proper need for the witness's own lawyer to act as an intermediary,
interpreting questions. . . ." The court then condemned this pernicious
objection, noting that clarification should come from the deposing lawyer:
I also note that a favorite objection or interjection of lawyers is, "I
don't understand the question; therefore the witness doesn't understand the
question." This is not a proper objection. 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. In addition, counsel are not permitted to state on
the record their interpretations of questions, since those interpretations
are irrelevant and often suggestive of a particularly desired answer. NOTE 19.

"If you know, if you remember"

This interjection was strongly condemned in Sinclair v. KMart Corp., where
the court commented on its destructive effect:

[T]he repeated interjections instruct Schnell [the witness] to answer Mr.
Focht's questions "if you recall" or "if you remember" or "if you know."
Subsequent to these interjections, Schnell in many instances proceeds to
respond that he does not recall or know the answer. There are also repeated
interruptions by Schnell's personal counsel suggesting that Schnell review
documents to refresh his recollection, and questions seeking clarification
of questions. Eventually the deposition was terminated by plaintiff's
counsel. The court finds the deposition of Schnell was unfairly impeded by
comments of counsel and will grant Sinclair's request for the renewed
deposition. . . . The types of repeated interjections shown in the
transcript of the deposition are not justified and are prohibited. NOTE 20.

This objection is widely regarded by the courts for the sham that it is, an
attempt to coach the witness that he or she should not remember something.
"Don't speculate, don't guess"

This is another frequently heard objection at depositions. Sometimes,
counsel instruct their clients not to answer questions at all if the answer
is allegedly based on "speculation."

Typically, counsel will state right on the record, before any answer is
given to the question, "Don't guess." This suggests to the witness that any
contemplated answer really is a guess or speculative and probably shouldn't
be given.

The objection is improper, regardless of what counsel's motives are. This
is a discovery deposition, and a witness's "speculation" could well lead to
the discovery of admissible evidence. One commentator has noted:

A well prepared witness will have been told not to speculate and will heed
this instruction from his or her counsel (usually by saying something like
"I could only speculate"). . . . You want, and are entitled to, incompetent
evidence (including hearsay and speculation) that appears reasonably
calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P.
26(b)(1). NOTE 21.

Two other commentators give a different perspective:

This objection is proper when a question seeks information not in the
witness's personal knowledge. An example would be a question calling for a
witness's opinion about what someone else was thinking or for testimony
about events at which the witness was not present. Sometimes this objection
takes the form of an objection that there is no foundation that the witness
has knowledge about the subject under inquiry. The objection can also be
used for questions calling for an improper lay conclusion or improper
expert conclusion. NOTE 22.

It is obvious that what the commentators are calling a speculation
objection is actually a foundational objection.

"Asked and answered"

Plaintiff lawyers frequently hear this objection, sometimes followed by an
instruction not to answer any further questions regarding the subject area.
This objection may occasionally have merit if the nature of the questioning
is truly--and abusively--repetitive, i.e., the same question is being asked
over and over again for purposes of harassment rather than legitimate
discovery.

This objection is usually invalid because it is more an effort to compel
the interrogating counsel to accept a vague, ambiguous, or evasive answer.
Then, the objection simply becomes a control mechanism designed to prevent
probing and mold a convenient record. This is improper. Consider the
following colloquy from the car theft case.

Plaintiff attorney: Did you give any specific employee training to your
employees of your service department about how to prevent thefts?

Defense attorney: Other than what he's already identified?

Plaintiff attorney: Right.

Defense attorney: Other than what he's already discussed?

Plaintiff attorney: Well, let me just start all over again. Did you, in
fact, give any employee training at all to service department personnel
about how they could prevent thefts?

Defense attorney: I am going to object on the grounds of being asked and
answered. He's already identified memoranda, discussions that he had with
them, meetings.

Plaintiff attorney: I object to your coaching him.

Defense attorney: I am not coaching. It's been asked and answered.

Plaintiff attorney: Go ahead and answer the question.

Defense attorney: I don't think he needs to answer it again. If you want
him to answer about things he hadn't already talked about, he can talk
about that.

Plaintiff attorney: What I need to know at this point is if you have given
any specific employee training to members of the service department about
how to prevent thefts.

Defense attorney: If there's anything in addition to what you have already
talked about, tell him about that.

Because of this and other abusive tactics, the court ordered the entire
deposition to be retaken. In this colloquy, the deponent's counsel simply
used "asked and answered"as an excuse to coach the witness that he should
refer to certain memoranda, discussions, and meetings.

In actual cross-examination at trial, most courts will allow considerable
latitude in questioning an adverse or evasive witness. Why should counsel
be compelled to accept an evasive answer at deposition just because it is
the first answer? Also, repeated interjections by counsel often create an
atmosphere where some repetition is inevitable.

"Assumes facts not in evidence"

This objection may be either valid or invalid depending on the
circumstances. Certainly, the deposing lawyer is not permitted to ask a
question in such a way as to assume that unproven facts are true. The
lawyer defending the deposition, likewise, does not have the right to
object to the discovery of information that might lead to the discovery of
admissible evidence just because the information is "not yet in evidence."
Faced with this objection, a taker will often respond by arguing that no
testimony or item is "in evidence" at a deposition. If as a defender you
make this objection, expect an experienced taker to frame the same question
carefully as a hypothetical to allow each element to be established at
trial. Often the better objection is lack of foundation. NOTE 23.

However, if the tenor of this objection goes to the "impermissible nature
of the testimony sought," as opposed to the nature in which the question
was asked, the focus is admissibility of the testimony at trial and the
objection is preserved until trial. There is this caution:

Too many lawyers believe that they need to object only as to the form of a
question, and all objections regarding the question's substance are
preserved. That is incorrect. Any defect that goes to the substance of the
question (or the competency of the witness) and that can be cured must be
met with an objection also; otherwise it is waived. NOTE 24.

"Argumentative"

Where a question is truly argumentative, it is improper in form and should
be objected to at the deposition. An argumentative question is simply one
that challenges the witness's memory or senses. For example, if a witness
testifies he has overheard a conversation, the question, "You couldn't
really overhear that conversation when you were 10 feet away, could you?"
is argumentative.

There are legitimate, nonargumentative ways to probe the witness's
perception, memory, and so on. But as with other objections that are valid,
this objection can be abused.

The importance of making timely "argumentative" objections, and other
objections that might be obviated during the course of a deposition if
promptly presented, is highlighted by Kirschner v. Broadhead. The case
arose out of an assault and battery between two professionals at a resort.
The deponent was unavailable for trial, which necessitated the introduction
of deposition testimony.

The court, citing a ruling by the Sixth Circuit, observed:
The deponent had been asked a number of argumentative questions by
plaintiff's counsel without objection by defendant. The trial court
sustained several of defense counsel's objections to the form of the
deposition questions. On appeal, the Sixth Circuit held that the district
court erred in sustaining the objections because defendant had not raised
them during the deposition. We find the Sixth Circuit's reasoning
persuasive and worth repeating: If the objection could have been obviated
or removed if made at the time of the taking of the deposition, but was not
made, then that objection is waived. The focus of the rule is on the
necessity of making the objection at a point in the proceedings where it
will still be of some value in curing the alleged error in the deposition.
When a party waits until trial to object to testimony in the deposition,
the only manner in which to cure the deposition is to bar the objectionable
portions from the trial. It is important that objections be made during the
process of taking the deposition, so that the deposition retains some use
at the time of trial; otherwise counsel would be encouraged to wait until
trial before making any objections, with the hope that the testimony,
although relevant, would be excluded altogether because of the manner in
which it was elicited. NOTE 25.

"Mischaracterization"

This is another objection that is often inappropriate, or a thinly veiled
attempt to coach the witness. The objection is appropriate if the examiner
prefaces the question with a brief summary of prior inaccurate testimony.
For example, "So after the chairperson reviewed your memorandum, he told
you to contact the vice president of marketing at Company Y, and what did
you do?" This question would be objectionable based on mischaracterization
if the witness had testified that the memorandum was only sent to the
chairperson, but "gave no testimony about his reviewing the memorandum or
being asked to contact the vice president of marketing." NOTE 26.

This objection is often used abusively. In the example above, we have seen
attorneys make this objection when the question is simply, "Did you then
contact the vice president of marketing?"

The implication by opposing counsel is somehow that the mere question
itself, which implies a different answer or an additional answer,
mischaracterizes the witness's prior testimony. This is obviously not so.
Counsel has the right to probe the witness's knowledge and motives,
particularly where the witness is hostile or evasive. This doesn't mean
that deposing counsel must accept a witness's first, evasive answer, just
because it is first.

It is therefore hard to see how a follow-up question, by itself, can
"mischaracterize" prior testimony when it is not characterizing testimony
at all. It is simply asking about the same matter from a different
perspective, perhaps one that is unhelpful to opposing counsel's case.

"Vague and ambiguous"

This is an objection to the form of the question and must be made at the
deposition or it is waived. A genuinely ambiguous question uses terms that
are undefined, subject to different interpretations, or unfamiliar to the
witness.

However, the objection is often abused by defense counsel who take the
position that virtually every word in the English language is vague or
ambiguous. This objection is often used simply to disrupt the deposition.

"Compound question"


A compound question combines two or more elements into one question, so the
witness can't possibly know which part to answer, or may be confused and
mean to answer only one part affirmatively. For example: "Did you stop the
car, go into the house, and talk to Mr. X?" Answer: "Yes." Perhaps the
witness meant to answer "yes" to all three parts of that question, but
perhaps not. Perhaps the witness stopped the car, but Mr. X came out and
talked to him at the car.

Compound questions are objectionable, and it is important to register that
objection at the deposition, which usually results in curing the basis of
the objection.

"Leading"

A leading question suggests the answer and is improper in form unless the
witness is the adverse party or a hostile witness. For example, asking your
client's wife in a personal injury case, "Didn't Client continue to have
problems with pain in his back for two years after the accident?" clearly
suggests the answer. Leading questions often suggest or call for a "yes" or
"no" response.

If the deponent is an adverse party or hostile witness, leading questions
are appropriate. Leading questions are appropriate for all witnesses,
hostile or not, if they merely go to preliminary or foundational matters.
Since "leading" goes to the form of the question, the objection must be
made at the deposition or it is waived.

Not infrequently, there is controversy about whether a witness is truly
identified with a hostile party or is truly hostile. Under such conditions,
this objection can become abusive.

For example, in the medical malpractice case referenced above, the
"leading" objection would have been improper if it were made (which it was
not) in the depositions of the treating doctors because they were clearly
friendly with the defendant doctor, who referred them business. If the
objection becomes abusive, it is simply treated like any other improper
interjection.

"Calls for a narrative response"

Occasionally, counsel objects that a question "calls for a narrative
response," implying that that is somehow improper.

The objection is somewhat puzzling, particularly when used at a deposition.
There is no rule of evidence that prohibits narratives; evidence rules are
concerned with the admissibility of evidence at trial. Most takers will
argue correctly that this objection is inappropriate at a deposition
because admissibility is not in issue. Therefore, if this objection is
made, expect the examiner to persist in seeking a response. NOTE 27.

The practical danger of allowing a lengthy narrative answer, however, is
evident when you consider that such answers frequently go far off the mark
of the original question. Even though a brief narrative may not be
inappropriate, an unresponsive answer is inappropriate.

The experienced defender may follow a lengthy narrative with the objection
that the answer was "nonresponsive" and move to strike. This objection is
probably appropriate because it goes to the form of the original question
and is an objection that could lead to the curing of the problem at the
deposition.

"Harassment"

"Harassment" is one of the objections that can be both proper and improper.
Federal Rule of Civil Procedure 30(d)(3) provides that at any time during
the taking of the deposition a party may move for a protective order if the
deposition is "being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or party. . . ."
Obviously, this implies rather strongly that harassment, if it is really
occurring, is a valid deposition objection, even if the deposition is not
terminated and there is no immediate motion made.

However, this objection is often abused. In a broad sense, it is
"harassment" if the deposition results in difficult or unpleasant
information being dragged out of a reluctant, evasive witness, who is
unhappy about it. However, that situation is not a proper basis upon which
an attorney may make the objection.

In my experience, more often than not, the real harassment is on the part
of the deponent's attorney. The objection is usually intended to interrupt
and disrupt the opposing attorney's deposition by creating confusion.

There are few "real McCoy" examples of an attorney harassing a deponent.
There are, however, many instances of the deponent's attorney harassing the
examining attorney. When this occurs, the law of abusive interjections and
interruptions applies.


Conferring with counsel during breaks

In Hall, the court stated: "During a civil trial, a witness and his or her
lawyer are not permitted to confer at their pleasure during the witness's
testimony. . . . The same is true at a deposition." NOTE 28.

The Hall court gave its reasoning for limiting attorney-deponent
conferences: "The underlying reason for preventing private conferences is
still present: they tend, at the very least, to give the appearance of
obstructing the truth." NOTE 29.

The court then issued an order forbidding conferences between a witness and
his or her counsel during breaks or recesses except for the purpose of
asserting a privilege. The court added that should a conference be held,
the deposing attorney is given free reign to inquire into the substance of
the conversation.

In stating its reasons for limiting conferences during breaks, the court
said: "A clever lawyer or witness who finds that a deposition is going in
an undesired or unanticipated direction could simply insist on a short
recess to discuss the unanticipated yet desired answers, thereby
circumventing the prohibition on private conferences." NOTE 30.
Most courts have rejected the Hall reasoning on this point. NOTE 31.
Obviously, counsel could confer with the client during a break at trial;
the same should be permitted at deposition.

Additionally, although some courts allow inquiry into conferences between
the attorney and the client at depositions, that conclusion is a
controversial one and seemingly implicates the attorney-client privilege.

Toward a standing order

An order at an early stage of discovery will help streamline the deposition
process, minimize the inappropriate conduct, and move litigation along
expeditiously.

The likelihood of problematic conduct will be greatly reduced if the court
informs counsel at the outset of the litigation of its expectations with
respect to the conduct of depositions, including speaking and argumentative
objections, instructions not to answer, coaching of witnesses (including
restrictions during recesses in the deposition), and evasive or obstructive
conduct by witnesses. NOTE 32.

Standing orders of various kinds find precedent in the law and have the
salutary effect of helping lawyers remember our duties. For example,
members of the bar in many states are required to sign a certificate
affirming that they segregate trust monies from general account monies in
the appropriate manner. This does not suggest that we are all dishonest.
Many lawyers are required to certify biennially that they have a certain
number of hours of continuing legal education. This doesn't mean that we
are all ignorant. There is a standing order in some federal courts
prohibiting cellular phones from being brought into the courthouse,
although most lawyers have the sense to turn them off before they actually
enter a courtroom.

Standing orders simply guide, direct, and encourage appropriate conduct.
Standing orders on discovery are in effect in many federal district courts
in the nation, and probably a number of state courts also. This request for
a standing order is a guide for positive conduct, rather than a punishment
for negative conduct. But it is a guide whose influence will be most
welcome in civil litigation.

_______________________________
Notes
1. Gregory P. Joseph, Depositions, Techniques, Problem Areas and Special
Situations, in CIVIL PRACTICE AND LITIGATION IN FEDERAL AND STATE COURTS 18
(Sol Schreiber ed., 1996).
2. FRANCES H. HARE JR. ET AL., FULL DISCLOSURE: COMBATING STONEWALLING AND
OTHER DISCOVERY ABUSES 3 (1994).
3. 329 U.S. 495, 501 (1947).
4. HARE, supra note 2, at 4 (citations omitted; emphasis added).
5. 150 F.R.D. 525, 528 (E.D. Pa. 1993).
6. 164 F.R.D. 559, 560 (N.D. Okla. 1995).
7. Jeffrey S. White & Eve T. Saltman, Problem Counsel, Problem Witnesses,
in EFFECTIVE DEPOSITIONS 455, 456 (Henry L. Hecht ed., 1997).
8. See, e.g., Eggleston v. Chicago Journeymen Plumbers Local Union No. 130,
657 F.2d 890, 901-902 (7th Cir. 1981); Frazier v. Southeastern Pa. Trans.
Auth., 161 F.R.D. 309, 315 (E.D. Pa. 1995); Damaj, 164 F.R.D. 559, 560-61;
Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa. 1993);
Langston Corp. v. Standard Register Co., 95 F.R.D. 386, 390 (N.D. Ga. 1982).
9. See, e.g., First Tenn. Bank v. Federal Deposit Ins. Corp., 108 F.R.D.
640, 640 (E.D. Tenn. 1985). Federal Rule 30(d) was amended in 1993 to
specifically proscribe instructing a witness not to answer. However, as
noted by this case, the rule simply codified the existing common law.
10. Shapiro v. Freeman, 38 F.R.D. 308, 311 (S.D.N.Y. 1965); see also
Eggleston, 657 F.2d 890, 902.
11. Stuart W. Gold & Henry L. Hecht, Defending at a Deposition, in
EFFECTIVE DEPOSITIONS, supra note 7, at 349, 354.
12. Shapiro, 38 F.R.D. 308, 312.
13. 108 F.R.D. 405, 408 (D. Colo. 1985).
14. Hall v. Sykes, 164 F.R.D. 46, 48 (E.D. Va. 1995).
15. 172 F.R.D. 415, 416-17 (D. Haw. 1997) (emphasis added); see also
Bockweg v. Anderson, 117 F.R.D. 563, 563 (M.D.N.C. 1987).
16. Van Pilsum v. Iowa State Univ. of Science & Tech., 152 F.R.D. 179, 181
(S.D. Iowa 1993).
17. See Unique Concepts, Inc. v. Brown, 115 F.R.D. 292, 293-94 (S.D.N.Y.
1987), and cases cited therein.
18. See Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996).
19. 150 F.R.D. 525, 528, 530 n.10.
20. No. 95-1170-JTM, 1996 U.S. Dist. LEXIS 19661, at *19-20 (D. Kan. Dec.
9, 1996), judgment entered, 1997 U.S. Dist. LEXIS 1158 (D. Kan. Jan. 31, 1997).
21. Joseph, supra note 1, at 19.
22. Gold & Hecht, supra note 11, at 361.

23. Id. at 361-62.
24. Id. at 362.
25. 671 F.2d 1034, 1037-38 (7th Cir. 1982) (citing Bahamas Agric. Indus. v.
Riley Stoker Corp., 526 F.2d 1174, 1181 (6th Cir. 1975)).
26. Gold & Hecht, supra note 11, at 360-61.
27. Id. at 361.
28. 150 F.R.D. 525, 528.
29. Id.
30. Id. at 529.
31. DENNIS R. SUPLEE & DIANA S. DONALDSON, THE DEPOSITION HANDBOOK 27-36
(2d ed. Supp. 1997).
32. MANUAL FOR COMPLEX LITIGATION, THIRD §21.456, at 89-90 (1995) (emphasis
added).

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