Effective Deposition Objections

Lawyers (and unrepresented parties) in litigation are tasked with finding out the nature of actual disputes. They accomplish this in the process that the legal profession has named "discovery." Each legal process begins with a complaint or a claim of some kind. The old adage that "there are two sides to every story" comes to mind. Occasionally, the response to such a claim will be to provide what is sought or claimed, but more often there are defenses raised and the process begins a course that could end up with a trial. 

 

Discovery is supposed to help a party to that dispute reach a better understanding of the dispute and the people or other entities involved. It is a process of asking questions, learning, and often then asking new questions based on what was learned. It is a process about which lawyers often complain. I have met several lawyers who believe themselves to be quite gifted regarding discovery, and yet scornful of the perceived failings of various other lawyers in that process. 

 

Perspective is a critical word in litigation. Different parties and their attorneys will likely see various facts and thoughts differently. That is a natural effect of human nature. Part of the effort in discovery is to explore those perspectives and the foundations for them. The goal is to learn both what the other party or witness knows and how they came to know it. It is also usually of assistance to know how they reached any conclusions that they express. Discovery is about gleaning information. 

 

It is important to remember that there are a variety of rules regarding what can and cannot be evidence at trial. These are generally expressed in an evidence code or a set of evidence rules in a particular jurisdiction. There may be requirements that require original documents instead of copies, exclude various statements made by people not presently testifying (repeating what someone else said), or require that certain foundations be established before something can be admitted as evidence. It is generally true that the standards and restrictions on what may be evidence are more strict than the standards as to what might be asked in discovery. Thus, much may be learned in discovery, but possibly not everything learned can be admitted. 

The process is thus challenging. It becomes more challenging because that deposition taken for discovery might later be used at trial. Because the lawyers involved recognize that potential exists, they are likely to strive for that deposition to be as helpful to their client's interests as possible. And, if someone is asking questions that are not appropriate, the opposing party or attorney should voice an objection. The point of the objection is not to conduct an argument at that moment in time, although they sometimes devolve into that. The point of an objection is for one party/attorney to put another party/attorney on notice that she or he believes either a question or an answer is inappropriate or inadmissible. 

But for some reason, there is persistent misunderstanding about what kinds of objections are critical in a deposition. The failure to raise certain objections during the deposition may result in the party waiving the right to raise that objection later. But, because of the discovery purpose, and the notably lower standards that govern what can be discovered as compared to what can be evidence, the failure to raise many other objections may very well not result in waiver. 

 

The Florida First District has held “Failure to object to questions and answers during a discovery deposition does not amount to a waiver of the right to make objections thereto at trial except in limited circumstances.” Objections may later be raised at trial, if the deposition is admitted as evidence, as if the witness were “then present and testifying.” Waiver occurs only if “the ground of the objection is one that might have been obviated or removed if presented” at the deposition.” See David v. City of Jacksonville, 534 So.2d 784 (Fla. 1st DCA 1988).

 

As a side note, the Florida Courts have no purview or authority for defining or enacting rules for practice before the OJCC, but the duly enacted Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications (R.Pro.Work.Comp.Adj.), Chapter 60Q, Florida Administrative Code, address discovery, specifically depositions, and how those may be “taken and used.” Rule 60Q6.114(2). The R.Pro.Work.Comp.Adj. adopt and incorporate by reference the “Florida Rules of Civil Procedure.” Thus, while written and adopted by the Court for practice in the Article V. Courts, those rules have been incorporated and are likewise rules of this Office. Two provisions are worthy of review. 

 

Rule 1.330(d)(3)(A) provides:

"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 is one that might have been obviated or removed if presented at that time."

Rule 1.330(d)(3)(B)provides:

"Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition."

LAWYER: When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?

To which the opposing counsel is said to have replied:

OTHER LAWYER: Objection. That question should be taken out and shot.