Have you ever been in a deposition and noticed something improper and prejudicial, but couldn't think of a precise objection to make? There might not be one. For example, many deponents now appear by remote video in unconventional settings - living rooms, hotel lobbies, or their cars - where others are present and may disrupt or influence the testimony. The rules' drafters couldn't possibly anticipate these new challenges. So, for misconduct that isn't squarely covered by a specific objection, Jim provides you with a single broad "super-objection" that will cover virtually any irregularities. This will help protect your right to exclude testimony, or the entire deposition, as needed. (As always, thank you for listening, and please take 30 seconds and leave us a 5-star review wherever you get your podcasts. It's a fast, free, and fantastic way to thank our production crew. We deeply appreciate it.)

SHOW NOTES

Ratliffe v. BRP U.S., INC., et al., No. 1:20-CV-00234-JAW, 2024 WL 4728898 (D. Me. Nov. 8, 2024) (order denying motion in limine to exclude deposition where witness’ mother assisted deponent while testifying; held, objections to alleged impropriety waived)

Fed. R. Civ. P. 30(d)(3)(A) (allows court relief where deposition is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party)

Fed. R. Civ. P. 32(d)(3)(B) (deeming objections waived if not made during the deposition where objection is to any irregularity in the way the deposition is being conducted)

Fed. R. Civ. P. 26(c) (allowing protective order permitting or forbidding discovery if necessary to ensure fair proceedings)

Fed. R. Evid. 403 (allowing exclusion of evidence on grounds of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence)

United States v. Simmons, 515 F. Supp. 3d 1359, 1364 (M.D. Ga. 2021) (“While “unreasonable” and “oppressive” are not defined under Rule 17, they have a common sense meaning, and courts finding a valid and specific privilege may quash subpoenas on that ground”)

Heartland Hotel Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. CV 07-2147, 2008 WL 11440623, at *8 (W.D. Ark. Aug. 5, 2008) (“Oppressive ” is defined in Webster's Third New International Dictionary as “unreasonably burdensome” and “unjustly severe, rigorous or harsh”)

Today Jim Garrity tackles the topic of narrative objections, which are objections that go beyond a simple "Form!" or "Objection!" and provide a concise explanation of the grounds for the objection. Some litigators see anything beyond a single word as a speaking objection or as coaching, but that's not so. Jim untangles the spaghetti in this episode.

(By the way, there are a total of 12 cases and rules listed in the show notes. If you don't see them all, click through to our podcast page, and you'll find them there. Some hosting sites truncate show notes to save space. And, if you have a moment, would you please leave us a 5-star rating wherever you're listening to us? It takes less than 30 seconds, but it's a huge incentive for us to put these episodes together. We offer critical expert insights in this podcast, as well as the research to back it up, and it's all free. The 5-star ratings are a great way to send us a thank you back. Thanks!)

SHOW NOTES

B.P. v. City of Johnson City, No. 2:23-CV-71-TRM-JEM, 2024 WL 3461408 (E.D. Tenn. July 18, 2024) (statement that pages were out of order or missing, following objection, wasn’t improper “speaking objection” but, rather, articulated basis for objection; court also found no basis to limit defending lawyers to word “objection” during deposition, as lawyer must state basis for it)

Dino Antolini, Plaintiff, v. Amy McCloskey, et al., Defendants., No. 1:19-CV-09038-GBD-SDA, Not Reported in Fed. Supp., 2021 WL 5411176, (S.D.N.Y. Nov. 19, 2021) (citing cases for proposition that objections should be made using the single word “Objection” unless the basis for the objection is requested; providing numerous examples of alleged speaking objections)

R.D. v. Shohola, Inc., No. 3:16-cv-01056, Not Reported in Fed. Supp., 2019 WL 6134731 (M.D. Pa. Nov. 19, 2019) (in context of pretrial rulings, court declined to grant motion in limine barring speaking objections, saying, “However, because “we deem the question of what constitutes an improper speaking objection, an inappropriate comment on excluded evidence, or an improper ad hominem exchange to be fact bound matters which cannot be determined wholly in the abstract, we will defer further rulings on these motions pending proper objections at trial”)

Fed. R. Civ. P. 30(c)(2) requiring objections to “be stated concisely in a non-argumentative and non-suggestive manner”)

Committee Notes to 1993 Amendments (stating that new paragraph (1) at the time provides that “that any objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner;” rule does not tell us how to make an objection, such as by word “objection”)

Brent v. Cramer, et al., No. CV JKB-22-1349, 2024 WL 3878145 (D. Md. Aug. 20, 2024), fn. 4 (providing examples of alleged speaking objections)

Christie v. Royal Caribbean Cruises, Ltd, No. 20-22349, 2021 WL 2940251 (S.D. Fla. July 13, 2021) (examples of speaking objections)

State Farm Mutual Automobile Insurance Company v. Dowdy, 445 F. Supp.2d 1289 (N. D. Oklahoma July 21, 2006)

In re Stratosphere Corporation Securities Litigation, 182 F. R. D. 614 (D. Nevada 1998) (“This Court can find no better or more succinct definition or description of what is and is not a valid deposition objection than that found in Rule 30(d)(1): “Any objection to evidence during the deposition shall be stated concisely and in a non-argumentative and non-suggestive manner”)

Mitnor v. Club Condominiums, et al., 339 F.R.D. 312, 317-318 (N.D. Fla. 2021) (describing some of the essential characteristics of an improper speaking objection)

Fed. R. Evid. 103 (providing that in order to preserve and objection, a party must timely object or move to strike and state the specific ground for the objection, and less it is apparent by context)

Fed. R. Civ. P. 32(d) (Waiver of Objections)

Today's roundup of new deposition-related cases focuses on four rulings. One offers a great strategy to exclude hostile deponents' deposition testimony, where they answer your opponents' questions but refuse to let you fully and fairly cross-examine them. A second touches on the age-old question of whether "Form!" or "Objection!" is enough or whether you must articulate the specific evidentiary basis. The third offers an idea for administering a slightly modified oath to immature deponents who might not understand the standard oath. The fourth looks at a novel approach one party took in noticing an individual witness with an attached, lengthy 30(b)(6) list of topics relating to matters that seemed better suited for a corporate representative.

Thanks for listening! And be sure to check out the book upon which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Available on Amazon and almost everywhere else books are sold. Now in it's fourth edition at 600 pages. It's a career-saving resource.

SHOW NOTES

Perrot v. Kelly, et al., Case No. 18-cv-10147, 2023 WL 11873009 (D. Mass. October 27, 2003) (reserving right to exclude deponent's testimony if witness continued to thwart plaintiff's opportunity to fully and fairly examine her, under FRE 804 relating to witness "unavailability"; court appears to equate refusal to give testimony with unavailability)

B.P., et al. v. City of Johnson City, et al., No. 2:23-cv-71-TRM-JEM, 2024 WL 3461408 (E. D. Tenn. July 18, 2024) (refusing to limit lawyer to word "Objection" during depositions, and stating that lawyers have obligation to state the specific basis for the objection and not limit it to "objection" or "form" alone; further declining to sanction lawyer for longer narrative objections about incomplete documents because they were not intended to coach witness as to a particular answer)

People v. Lopez, 550 P.3d 731 (Ct. App. Colo 2024) (affirming conviction of criminal defendant over objection that trial judge conducted modified administration of oath to 10-year old witness; finding that modified oath is appropriate for an immature witness who may not understand standard oath)

Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024) (rejecting plaintiffs' effort to depose individual by serving FRCP 30(b)(6)-style deposition notice with lengthy attached topic list)

See, 30(b)(6)-style Deposition Notice Served on Individual, PACER CM/ECF Doc. No. 135-1 (showing notice with attached topic list and list of documents to be brought by individual deponent) Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024)