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Let’s Get Objective About Objectionable Objections

Labor and Employment Law

Depositions are typically the only time that a party or witness will give testimony in a case since so few employment cases go to trial. Experience tells us that for this reason, lawyers routinely use depositions to “grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party.”1 As one federal judge lamented recently, obstructionist deposition tactics have seemingly become routine, and even expected, in modern discovery practice.2 Objections during depositions are, therefore, commonly employed to break up the cadence of an opposing attorney’s questioning, indirectly guide the witness toward a specific answer (or nonanswer), or even distract the questioning lawyer away from a potentially volatile question or line of questioning.

These practices have led to frustration from the bench at both the federal and state levels. In one particularly noteworthy case, Security National Bank of Sioux City, Iowa v. Abbott Labs, 299 F.R.D. 595, 597 (N.D. Iowa 2014),3 U.S. District Judge Mark W. Bennett issued a scathing order sanctioning a defense lawyer for conduct during several depositions in the case.4 Judge Bennett’s sanction was that the offending attorney write and produce, on her own with only technical assistance, an instructional video explaining why unspecified “form” objections, witness coaching, and excessive interruptions are improper during depositions.5

In light of Abbott Labs and other recent decisions, this article explains proper and improper deposition objections and other deposition conduct. It also (hopefully) provides an easy reference for lawyers to use when taking or defending depositions.

The Scope of Depositions and Objection Basics
Under the federal and state rules, deposition testimony can be used for a variety of purposes, including evidentiary support for motions, impeaching, or contradicting witnesses at hearings or trial, and it can be read into evidence before the jury when the deponent is not available.6 Given the many uses of deposition testimony, the federal and state rules allow attorneys wide latitude as to the scope of questioning in depositions, permitting questioning as to any nonprivileged matter that is relevant to the subject matter of the pending action.7 The scope of questioning in depositions, therefore, is very broad and the restrictions on such questioning are directed primarily “at the use of, rather than the acquisition of, the information discovered.”8

Rule 30 of the federal rules states: “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.”9 Since its Florida counterpart was derived directly from Rule 30,10 Fla. R. Civ. P. 1.310 follows the federal rule almost verbatim: “Any objection during a deposition shall be stated in a concisely and in a nonargumentative and nonsuggestive manner.”11

Form Objections
Many (and probably most) lawyers have been trained that the only proper deposition objection as to the form of a question is simply, “Objection, form,” or something very similar. The Abbott Labs court, however, stated that objecting to “form” is like objecting to “improper” in that it does nothing more than vaguely suggest to the questioner that the opposing attorney takes some issue with the question.12 The court explained that “form” refers a broad category of specific objections, and, therefore, “saying ‘form’ to challenge a leading question is as useful as saying ‘exception’ to admit an excited utterance.”13

According to the Abbott Labs court then, unspecified “form” objections do not actually alert the questioner to what the specific alleged defect is, preventing the questioner from immediately curing the objectionable part of the question.14 Instead, the questioner must ask the objecting lawyer to clarify, which can sometimes take substantial time and increases the amount of “objection banter” between the lawyers.15

The court in Henderson v. B&B Precast & Pipe, LLC, 2014 WL 4063673 (M.D. Ga. 2014), took a similarly tough stance on “form” objections during depositions in that case. The court specifically stated, “This objection is meaningless standing alone and is contrary to what is contemplated by the Federal Rules of Civil Procedure.”16 Judge Land in Henderson explained that simply objecting to a question by stating “form” probably does not preserve the objection because it does not indicate what is wrong with the question, depriving the questioning lawyer the chance to cure the alleged issue during the deposition.17

The Henderson court further expanded on this concept, noting that allowing a lawyer to file an extensive brief after a deposition elaborating what was wrong with the form of the question when the lawyer failed to give the questioner any clue as to the deficiencies of the question during the deposition would be inconsistent with the federal rules and contrary to resolving an action in a speedy and inexpensive way.18 The court went on to overrule every “form” objection when the objecting lawyer did not elaborate further to apprise the questioning attorney of the problems with the questions so that he could reasonably fix any issues by rephrasing the question during the deposition.19

Similarly, in Ross v. Baldwin Cty. Bd. of Educ., 2008 WL 2020470 at *3, n.4 (S.D. Ala. 2008), the court overruled objections to testimony set forth in motions in limine because the attorney did not properly object during depositions, instead relying purely on “form” objections without further clarification as to the basis of the objections. In Mayor & City Council of Baltimore v. Theiss, 729 A.2d 965 (Md. Ct. App. 1999), the appellate court affirmed the trial court’s ruling that all “form” objections stated during an expert witness’ deposition were waived because such nonspecific objections did not allow the attorney asking the questions to reasonably address the problem and cure the objectionable question.20

Courts are not entirely consistent in their views on form objections. In fact, a few courts (none in Florida, however) require lawyers to state nothing more than unspecified “form” objections during depositions.21 Even judges within a particular district or circuit may not be consistent. For example, while the Middle District of Florida’s Civil Discovery Practice Handbook states that the phrase, “I object to the form of the question,” is acceptable and sufficient to preserve all form objections,22 I was recently chided by a U.S. district judge for the Middle District of Florida for doing just that during a deposition. I was then advised to read the Abbott Labs opinion, and to refrain from making unspecified “form” objections during depositions.

While objecting generally to “form” during a deposition should preserve form objections, I suggest, as explained in more detail below, that objections should be stated with a brief explanation as to the basis of the objection, such as “objection, leading.”

Proper Objections
Courts have endorsed a number of proper deposition objections. To be clear, however, even though the following objections are valid, witnesses must still answer the question posed to them even if the questioning lawyer does not rephrase the question or otherwise fix the objectionable portion of it in both federal and Florida state courts.23

“Objection, leading” —An objection that a question is leading goes to the form of the question and is, therefore, proper during a deposition.24 In fact, the failure to object to leading questions during the deposition generally acts as a waiver of the objection.25 The specific phrase, “objection, leading,” has been approved previously, even by a court that limits all other form objections to, “objection, form.”26 That court sustained the objection that questioning lawyer’s questions were leading after the deponent’s lawyer stated during the deposition that he had “been very lenient about leading [questions], but [I] would ask that you let the doctor testify as opposed to you,” calling it an objection “served on a platter of civility.”27 The objection to leading questions is therefore appropriate.

“Objection, compound” —If a question asks multiple questions at once, it is proper to object that the question is compound.28 These questions are “ambiguous and confusing” for witnesses, and so courts generally sustain these objections if the problem is not corrected during the deposition by the questioning attorney after an objection has been made.29

“Objection, assumes facts not in evidence” —An objection that a particular question assumes facts that are not in evidence is appropriate during an objection.30 An example of when this objection is appropriate is in response to questions, such as, “When did you stop discriminating against the plaintiff?,” when the witness has clearly never admitted to discriminating against the plaintiff.31

“Objection, asked and answered” — When a question has already been asked and the witness has already answered the same question earlier in the deposition, the “asked and answered” objection is proper.32 Employing this objection can be somewhat tricky in some situations, however, such as when the question that was allegedly already asked was asked hours prior to the current question, making it difficult for either attorney know whether the question has in fact already been asked and answered. This objection is also difficult to assess in cases involving multiple parties or particularly complex claims, since an earlier question could have only been similar to the one being asked and objected to. But assuming that the same question (or a very similar iteration of it) has already been asked and answered, this objection is appropriate during a deposition.

Borderline or Situational Objections
While the specific objections outlined above have clear precedential support, other objections are not nearly so well-defined. The following objections may be proper in some circumstances, but not in others. The objecting lawyer, thus, needs to understand the basis for these objections well, and only employ these objections when appropriate.

“Objection, vague,” or “objection, ambiguous” —Before most depositions, the questioning lawyer typically explains some basic ground rules to the deponent. One of those ground rules is almost always something to the effect of, “If you don’t understand my questions, please tell me and I’ll rephrase the question.” Despite this instruction, it is common for the lawyer defending the deposition to object on the basis that the question is “vague.”

The court in Cincinnati Ins. Co. v. Serrano, 2012 WL 28071 at *5 (D. Kan. 2012), noted, however, this objection is “usually. . . a speaking objection disguised as a form objection.” Only the witness knows whether he or she understands a pending question, and the witness has a duty to request clarification if needed, the court explained. The Serrano court was quick to highlight that it is certainly possible that a question could be so confusing, vague, or misleading that a vagueness objection would be appropriate.33 In that situation, the objecting attorney should limit his or her objection “to form” unless the questioning attorney requests further clarification of the objection.34

This objection could, therefore, certainly be proper in circumstances in which the question is overly vague or ambiguous, but the lawyer defending the deposition will need to make an assessment during the deposition based on the specific circumstances present at the time.

“Objection, calls for speculation” —One court held that objections that the question requires the witness to speculate are improper because such objections inform a witness as to how to answer a question.35 Other courts, however, have not taken issue with the objection and have endorsed and sustained it.36 The propriety of this objection, thus, depends on context, specifically to what extent answering the question requires the witness to speculate, and about how material the facts are to the case about which the witness is being asked to speculate. The basis for this objection exists on a wide spectrum of proper and improper, and is not black and white. The more speculative the question is, the more likely this objection is proper.

Improper Objections
The following objections are almost universally held to be inappropriate during depositions. Lawyers assert these objections at their own risk.

“Objection, relevance” —Fed. Rul. Civ. P. 32(d)(3) provides that objections to the competency, relevancy, or materiality of testimony are not waived if not made during a deposition. While the rule goes on to say such objections might be waived if the grounds for the objection may have been obviated or removed if presented during the deposition, as one court observed, “It is difficult to conceive of the likelihood that a question which calls for irrelevant information can be ‘cured’ by restating the question, unless the question is changed to ask for relevant (i.e., different) information.”37 Therefore, “it would be rare that an irrelevant question could be cured. . . [and so] the objecting party may wait until trial (or just prior to trial) to make the objection when, and if, the deposition testimony is offered into evidence.”38 Since a relevancy objection does not need to be made during a deposition, most courts would probably find such an objection improper.39

Commenting that a witness only answer “if they know” —This objection, which is usually thrown in off-handedly after a “form” objection, is considered to be “raw, unmitigated coaching, and [is] never appropriate.”40 In fact, if this type of conduct persists after the deposing attorney requests that the defending a lawyer stop, this particular objection has been held to be “misconduct and sanctionable.”41 It is probably a good practice, then, not to make a habit of using this comment during depositions.

Too many objections —Objecting too frequently, vehemently, or unnecessarily is improper, and may even be sanctionable.42 More specifically, under the federal and state rules, when a lawyer’s objections have frustrated a fair examination of the deponent or have unreasonably prolonged the examination, a court may impose an appropriate sanction, including the reasonable expenses and attorneys’ fees incurred by any party, on the person who impedes, delays, or frustrates the fair examination of the deponent.43 Beware of how often and strongly you are objecting you do not want to be accused of frustrating the purpose of the deposition.

• Instructing a witness not to answer — For most employment litigators, this one should be easy. In federal and Florida state courts, lawyers can only instruct a witness not to answer a deposition question under the following limited circumstances: 1) when necessary to preserve a privilege; 2) to enforce a limitation on evidence directed by the court; or 3) to protect a witness from an examination being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party.44 In any other circumstance, it is not appropriate to instruct a witness not to answer.

• Speaking objections —Finally, it should go without saying for most employment litigators that speaking objections are improper and prohibited under the plain language of both the federal and Florida rules.45 Unnecessary commentary and attempts to influence a deponent’s answer (or nonanswer) are simply not allowed.

Lawyers should be aware of objectionable objections when they are defending or taking depositions. Improperly objecting can land a lawyer in hot water, and so we should all take care when objecting during a deposition.

1 Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 596 (N.D. Iowa 2014), rev’d sub nom., Sec. Nat. Bank of Sioux City, IA v. Day, 800 F.3d 936 (8th Cir. 2015).

2 Id. at 597.

3 The district court’s sanctions order was ultimately reversed by the Eighth Circuit based on the 16-month gap between the attorney’s deposition conduct and the entry of the sanctions order, and because the offending attorney was not given notice of the particular sanctions to be imposed and an opportunity to be heard. Day, 800 F.3d at 943-45.

4 Id. at 597.

5 Id. at 610.

6 Fed. R. Civ. P. 32; Fla. R. Civ. P. 1.330.

7 Fed. R. Civ. P. 26(b)(1); Fla. R. Civ. P. 1.280(b)(1).

8 Fed. Prac. & Proc. Civ. §2001 (3d ed.).

9 Fed. R. Civ. P. 30(c)(2).

10 Fla. R. Civ. P. 1.310(c), 1972 comments.

11 Fla. R. Civ. P. 1.310(c).

12 Abbott Labs, 299 F.R.D. at 601.

13 Id. at 603.

14 Id.

15 Id.

16 Henderson, 2014 WL 4063673 at *1.

17 Id.

18 Id.

19 Id. at *2.

20 Theiss, 729 A.2d at 978.

21 See Druck Corp. v. Macro Fund (U.S.) Ltd., 2005 WL 1949519 at *4 (S.D.N.Y. 2005) (“Any ‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason.”); Turner v. Glock, Inc., 2004 WL 5511620 at *1 (E.D. Tex. 2004) (“All other objections to questions during an oral deposition must be limited to ‘Objection, leading’ and ‘Objection, form.’ These particular objections are waived if not stated as phrased above during the oral deposition.”); In re St. Jude Med., Inc., 2002 WL 1050311 at *5 (D. Minn. 2002) (“Objecting counsel shall say simply the word ‘objection,’ and no more, to preserve all objections as to form.”).

22 Middle District Discovery (2015) at §II.B.1.

23 Jones v. Seaboard Coast Line R. Co., 297 So. 2d 861, 863-64 (Fla. 2d DCA 1974); Berlinger v. Wells Fargo, N.A., 2014 WL 4783156 at *3 (M.D. Fla. 2014).

24 Grant v. Target Corp., 2016 WL 722160 at *2-3 (S.D. Ga. 2016). Indeed, “a party who has not objected to a leading question at the taking of a deposition may not subsequently object to it when the deposition is introduced at the trial.” Whitehurst v. United States, 231 F.R.D. 500, 501 (S.D. Tex. 2005).

25 Miller v. TGI Friday’s, Inc., 2007 WL 723426 at *3 (N.D. Ill. 2007) (internal citations omitted).

26 Turner v. Glock, Inc., 2004 WL 5511620 at *1 (E.D. Tex. 2004).

27 Id.

28 Luangisa v. Interface Operations, 2011 WL 6029880 at *10, n.9 (D. Nev. 2011).

29 Paramount Farms Int’l LLC v. Ventilex B.V., 500 F. Appx. 586, 588 (9th Cir. 2012).

30 Sequoia Prop. & Equip. Ltd. P’ship v. United States, 2002 WL 507537 at *2 (E.D. Cal. 2002).

31 See In re A.H. Robins Co., Inc., 575 F. Supp. 718, 726 (D. Kan. 1983) (giving examples of questions that assume facts not in evidence).

32 Cohen v. Trump, 2015 WL 2406094 at *1 (S.D. Cal. 2015).

33 Serrano, 2012 WL 28071 at *5.

34 Id.

35 Meyer Corp. U.S. v. Alfay Designs, Inc., 2012 WL 3536987 at *4 (E.D.N.Y. 2012).

36 Zabit v. Peterson Power Sys., Inc., 2008 WL 2445202 at *1 (N.D. Cal. 2008).

37 In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 618 (D. Nev. 1998).

38 Id.

39 See Parson & Whittemore Enterprises Corp. v. Cello Energy LLC, 2010 WL 1994857 at *3 (S.D. Ala. 2010) (holding that “[l]ack of relevance however is not a valid objection”).

40 Cincinnati Ins. Co. v. Serrano, 2012 WL 28071 at *5 (D. Kan. 2012).

41 Id.

42 BNSF Ry. Co. v. San Joaquin Valley R. Co., 2009 WL 3872043 at *3 (E.D. Cal. 2009).

43 Id.; Fla. R. Civ. P. 1.310(d); see also Stengel v. Kawasaki Heavy Industries, Ltd., 116 F.R.D. 263 (N.D. Tex. 1987) (constant interruptions where attorney made comments such as “big deal,” “waste of time,” etc., were nothing more than blatant attempts to frustrate the litigant’s attempt to take the deposition).

44 Gober v. City of Leesburg, 197 F.R.D. 519, 520 (M.D. Fla. 2000) (citing Fed. R. Civ. P. 30(d)(1), (3)); Fla. R. Civ. P. 1.310(c)-(d); see also Smith v. Gardy, 569 So. 2d 504, 507 (Fla. 4th DCA 1990) (holding that suspension of deposition pending ruling on improper examination is appropriate procedure to be followed if objecting attorney has valid basis for concluding that answer to clearly objectionable question would be so damaging that information revealed would be devastating beyond repair).

45 Fla. R. Civ. P. 1.310(d); Fed. R. Civ. P. 30(c)-(d); see also Quinones v. State, 766 So. 2d 1165, 1168 (Fla. 3d DCA 2000) (speaking trial objections containing improper editorials); Owens-Corning Fiberglass Corp. v. Crane, 683 So. 2d 552, 554 (Fla. 3d DCA 1996) (examples of speaking objections).

J. Evan Gibbs is an attorney in the Jacksonville office of Constangy, Brooks, Smith & Prophete, LLP. His practice is focused on litigating employment cases in state and federal court, and handling traditional labor matters.

This column is submitted on behalf of the Labor and Employment Law Section, Leslie Weiner Langbein, chair, and Robert Eschenfelder, editor.

Labor and Employment Law