Depositions: Speaking Objections Prohibited

David A. Szwak

Depositions: Speaking Objections Prohibited

Postby David A. Szwak » Sun Oct 16, 2005 11:48 pm

Counsel for Experian is notorious for violating this rule.

Talking objections, speaking interruptions despite polite requests not to do so, and other antics cause serious problems in a deposition.

You can move to compel the witnessto answer the questions posed and to further produce other witnesses requested whose identities have been concealed.

You may also seek an order directing counsel for defendant to refrain from further obstructive behavior as is shown in the transcripts of the depositions. Costs and sanctions should be granted.

You may seek an order prohibiting defense counsel from interposing speaking objections and other talking sessions which are designed to lead the witness and cause the witness to parrot the objections in the response or otherwise evade the question or to generally otherwise undermine the discovery and deposition process. Speaking objections are prohibited. Collins v. International Dairy Queen, 1998 U.S. Dist. Lexis 8254 [U.S.D.C. M.D. Ga. 1998]; Applied Telematics v. Sprint Corp., 1995 U.S. Dist. Lexis 2191 [U.S.D.C. E.D. Pa. 1995]; Unique Concepts, Inc. v. Brown, 115 F.R.D. 292 [U.S.D.C. S.D. N.Y. 1987]; Brignoli v. Balch, Hardy & Scheinman, Inc., 126 F.R.D. 462, 466 [U.S.D.C. S.D. N.Y. 1989].

The court in Phillips v. Manufacturers Hanover Trust Co., 1994 U.S. Dist. Lexis 3748 [U.S.D.C. S.D. N.Y. 1994], [[Also noting the deponent’s obligation to provide an adequate number of witnesses to respond to the notice.]] held that “Since Ms. Berti may have acted under a misapprehension as to her role at the deposition, I emphasize that it is not counsel's place to interrupt if a question is perceived to be potentially unclear to the witness. Rather, the witness should make the determination as to whether a question is clear and answer to the best of his or her ability. See Hall v. Clifton Precision, A Division of Litton Systems, Inc., 150 F.R.D. 525, 530 n.10 [E.D. Pa. 1993] ["If [a] 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."].”

The court in Wilson v. Sundstrand Corp., 2003 U.S.Dist.Lexis 14922 [U.S.D.C. N.D. Ill. 2003], [[The same litigation spawned a second decision addressing this issue at: 2003 U.S. Dist. Lexis 14356.]] recently held that “Federal Rule of Civil Procedure 30[d][1] plainly prohibits "speaking" objections by providing that "any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner." Just the other day, the Court sanctioned Sundstrand due in part to its attorney's repeated, prolonged, and successful effort to coach a witness, Deborah Pederslie, through improper speaking objections. See Wilson v. Sundstrand Corp., 2003 U.S. Dist. Lexis 14356, *43, Nos. 99 C 6944 & 99 C 6946 [N.D. Ill. Aug. 18, 2003].”

Directing a witness not to answer, as occurred in this case, was improper. Rule 30[d][1] provides, in pertinent part, as follows: "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3]." Paragraph [3] is the provision which provides for a motion for protection against conducting a deposition in bad faith or in a manner than is designed to unreasonably annoy, embarrass or oppress the deponent.

A party may object to an irrelevant line of question, but instructing a witness not to answer a question because it calls for inadmissable facts is sanctionable. Boyd v. University of Maryland Medical Systems, 173 F.R.D. 143, 144, 149 [U.S.D.C. Md. 1997]. However, counsel should avoid the prohibited practice of engaging in so-called Rambo tactics where counsel attacks or objects to every question posed, thus interfering with, or even preventing, the elicitation of any meaningful testimony and disrupting the orderly flow of the deposition. American Directory Service Agency, Inc. v. Beam, 131 F.R.D. 15, 18-19 [U.S.D.C. D.C. 1990].

The purported irrelevancy of a question is not grounds to instruct a witness not to answer the question. Fed.R.Civ.Proc. 30[c]; International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277, 279 [U.S.D.C. D.C. 1981]; Preyer v. U.S. Lines, Inc., 64 F.R.D. 430 [U.S.D.C. Pa. 1973]. This is so unless and until the pervasive or other nature of the questioning makes it obvious that it is necessary to stop the deposition and seek relief under Rule 30[d][3] for being conducted in a manner evidencing bad faith, or to embarrass, annoy, or oppress the deponent. The mere fact that more than one alleged irrelevant question is asked, or even that a series of alleged irrelevant questions are asked does not, by itself, constitute annoyance or oppression contemplated by [30][d][3]. "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3].” [emphasis added]. Fed.R.Civ.Proc. Rule 30[d][1].

David A. Szwak

South Carolina law: No Speaking Objections

Postby David A. Szwak » Tue Nov 01, 2005 10:32 am

In Re ANONYMOUS, 346 S.C. 177, 552 S.E.2d 10 (2001)

SC Supreme Court says that Rule 30(j), SCRCP prevents speaking objections by counsel and sets out how lawyers are to handle objectionable material during depositions.

David A. Szwak

Postby David A. Szwak » Sun Nov 06, 2005 8:04 pm

Plaintiff also seeks an order prohibiting Experian’s counsel from interposing speaking objections and other talking sessions which are designed to lead the witness and cause the witness to parrot the objections in the response or otherwise evade the question or to generally otherwise undermine the discovery and deposition process. Speaking objections are prohibited. Collins v. International Dairy Queen, 1998 U.S. Dist. Lexis 8254 [U.S.D.C. M.D. Ga. 1998]; Applied Telematics v. Sprint Corp., 1995 U.S. Dist. Lexis 2191 [U.S.D.C. E.D. Pa. 1995]; Unique Concepts, Inc. v. Brown, 115 F.R.D. 292 [U.S.D.C. S.D. N.Y. 1987]; Brignoli v. Balch, Hardy & Scheinman, Inc., 126 F.R.D. 462, 466 [U.S.D.C. S.D. N.Y. 1989].

The court in Phillips v. Manufacturers Hanover Trust Co., 1994 U.S. Dist. Lexis 3748 [U.S.D.C. S.D. N.Y. 1994], held that “Since Ms. Berti may have acted under a misapprehension as to her role at the deposition, I emphasize that it is not counsel's place to interrupt if a question is perceived to be potentially unclear to the witness. Rather, the witness should make the determination as to whether a question is clear and answer to the best of his or her ability. See Hall v. Clifton Precision, A Division of Litton Systems, Inc., 150 F.R.D. 525, 530 n.10 [E.D. Pa. 1993] ["If [a] 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."].”

The court in Wilson v. Sundstrand Corp., 2003 U.S.Dist.Lexis 14922 [U.S.D.C. N.D. Ill. 2003], [[The same litigation spawned a second decision addressing this issue at: 2003 U.S. Dist. Lexis 14356.]] recently held that “Federal Rule of Civil Procedure 30[d][1] plainly prohibits "speaking" objections by providing that "any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner." Just the other day, the Court sanctioned Sundstrand due in part to its attorney's repeated, prolonged, and successful effort to coach a witness, Deborah Pederslie, through improper speaking objections. See Wilson v. Sundstrand Corp., 2003 U.S. Dist. Lexis 14356, *43, Nos. 99 C 6944 & 99 C 6946 [N.D. Ill. Aug. 18, 2003].”

Directing a witness not to answer, as occurred in this case, was improper. Rule 30[d][1] provides, in pertinent part, as follows: "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3]." Paragraph [3] is the provision which provides for a motion for protection against conducting a deposition in bad faith or in a manner than is designed to unreasonably annoy, embarrass or oppress the deponent.

A party may object to an irrelevant line of question, but instructing a witness not to answer a question because it calls for inadmissable facts is sanctionable. Boyd v. University of Maryland Medical Systems, 173 F.R.D. 143, 144, 149 [U.S.D.C. Md. 1997]. However, counsel should avoid the prohibited practice of engaging in so-called Rambo tactics where counsel attacks or objects to every question posed, thus interfering with, or even preventing, the elicitation of any meaningful testimony and disrupting the orderly flow of the deposition. American Directory Service Agency, Inc. v. Beam, 131 F.R.D. 15, 18-19 [U.S.D.C. D.C. 1990].

The purported irrelevancy of a question is not grounds to instruct a witness not to answer the question. Fed.R.Civ.Proc. 30[c]; International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277, 279 [U.S.D.C. D.C. 1981]; Preyer v. U.S. Lines, Inc., 64 F.R.D. 430 [U.S.D.C. Pa. 1973]. This is so unless and until the pervasive or other nature of the questioning makes it obvious that it is necessary to stop the deposition and seek relief under Rule 30[d][3] for being conducted in a manner evidencing bad faith, or to embarrass, annoy, or oppress the deponent. The mere fact that more than one alleged irrelevant question is asked, or even that a series of alleged irrelevant questions are asked does not, by itself, constitute annoyance or oppression contemplated by [30][d][3]. "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3].” [emphasis added]. Fed.R.Civ.Proc. Rule 30[d][1].

David A. Szwak

Postby David A. Szwak » Fri Dec 09, 2005 8:01 pm

Ralston Purina Co. V. McFarland, 550 F. 2d 967 (4th Cir. 1977) the court found counsel’s direction to the deponent not to answer the questions, was indefensible and utterly at variance with the discovery provisions of the Federal Rules of Civil Procedure. Finding the questions to be germane and properly within the scope of discovery, a judgement in favor of the offending party was vacated with directions to allow the questioning and a new trial if appropriate.

David A. Szwak

Postby David A. Szwak » Fri Dec 09, 2005 8:02 pm

Evidence objected to shall be taken subject to the objections. Preyer v. United States Lines, Inc., 64 F.R.D. 430 (E.D. Pa. 1973), aff’d 546 F. 2d 418. In the absence of a showing of some serious harm likely to result from responding to any given question, the policies behind Rule 30(c) require the answer to be given. Paparelli v. Prudential Insurance Co. Of America, 108 F.R. D. 727 (E.D. Penn. 1985). Counsel’s desire for notice of the intended topics of questioning is clearly not a basis for even an objection, let alone an instruction to a witness not to answer the question or termination of a deposition.

David A. Szwak

Postby David A. Szwak » Fri Dec 09, 2005 8:10 pm

Plaintiff has also experienced a serious problem with deposition practice in cases involving Experian. Plaintiff also seeks an Order prohibiting speaking objections, as is contemplated by Rule 30 of the Federal Rules of Civil Procedure, and unsolicited talking sessions in oral depositions by the attorney either defending the deposition or during a time when the other attorney is posing questions. Fed.R.Civ.Proc. 30[c],[d]. Plaintiff seeks an order prohibiting Experian’s counsel from interposing speaking objections and other talking sessions which are designed to lead the witness and cause the witness to parrot the objections in the response or otherwise evade the question or to generally otherwise undermine the discovery and deposition process. Speaking objections are prohibited. Collins v. International Dairy Queen, 1998 U.S. Dist. Lexis 8254 [U.S.D.C. M.D. Ga. 1998]; Applied Telematics v. Sprint Corp., 1995 U.S. Dist. Lexis 2191 [U.S.D.C. E.D. Pa. 1995]; Unique Concepts, Inc. v. Brown, 115 F.R.D. 292 [U.S.D.C. S.D. N.Y. 1987]; Brignoli v. Balch, Hardy & Scheinman, Inc., 126 F.R.D. 462, 466 [U.S.D.C. S.D. N.Y. 1989]. The court in Phillips v. Manufacturers Hanover Trust Co., 1994 U.S. Dist. Lexis 3748 [U.S.D.C. S.D. N.Y. 1994], held that “Since Ms. Berti may have acted under a misapprehension as to her role at the deposition, I emphasize that it is not counsel's place to interrupt if a question is perceived to be potentially unclear to the witness. Rather, the witness should make the determination as to whether a question is clear and answer to the best of his or her ability. See Hall v. Clifton Precision, A Division of Litton Systems, Inc., 150 F.R.D. 525, 530 n.10 [E.D. Pa. 1993] ["If [a] 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."].”
The court in Wilson v. Sundstrand Corp., 2003 U.S.Dist.Lexis 14922 [U.S.D.C. N.D. Ill. 2003] [The same litigation spawned a second decision addressing this issue at: 2003 U.S. Dist. Lexis 14356], recently held that “Federal Rule of Civil Procedure 30[d][1] plainly prohibits "speaking" objections by providing that "any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner." Just the other day, the Court sanctioned Sundstrand due in part to its attorney's repeated, prolonged, and successful effort to coach a witness, Deborah Pederslie, through improper speaking objections. See Wilson v. Sundstrand Corp., 2003 U.S. Dist. Lexis 14356, *43, Nos. 99 C 6944 & 99 C 6946 [N.D. Ill. Aug. 18, 2003].” Speaking objections and leading commentary has begun a significant problem in cases involving Experian and an early order in this case would greatly assist in streamlining depositions and preventing abusive conduct.
Likewise plaintiff seeks an order prohibiting unnecessary and improper instruction of a witness not to answer questions. Historically, problems have repeatedly arisen with Experian witnesses being directed not to answer questions which were neither the subject of a privilege or any other valid objection. Wrenching responses from deponents is extremely time-consuming and expensive, in addition to being unnecessary. Rule 30[d][1] provides, in pertinent part, as follows: "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3]." Paragraph [3] is the provision which provides for a motion for protection against conducting a deposition in bad faith or in a manner than is designed to unreasonably annoy, embarrass or oppress the deponent. A party may object to an irrelevant line of question, but instructing a witness not to answer a question because it calls for inadmissable facts is sanctionable. Boyd v. University of Maryland Medical Systems, 173 F.R.D. 143, 144, 149 [U.S.D.C. Md. 1997].
Plaintiff also requests an Order prohibiting the unnecessary tack of objecting to questions where the objection is plainly improper and designed solely to hinder the interrogation and obstruct the flow of the deposition transcript. Courts have routinely noted that counsel should avoid the prohibited practice of engaging in so-called “Rambo tactics” where counsel attacks or objects to every question posed, thus interfering with, or even preventing, the elicitation of any meaningful testimony and disrupting the orderly flow of the deposition. American Directory Service Agency, Inc. v. Beam, 131 F.R.D. 15, 18-19 [U.S.D.C. D.C. 1990]. A purported irrelevancy of a question is not grounds to instruct a witness not to answer the question. Fed.R.Civ.Proc. 30[c]; International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277, 279 [U.S.D.C. D.C. 1981]; Preyer v. U.S. Lines, Inc., 64 F.R.D. 430 [U.S.D.C. Pa. 1973]. This is so unless and until the pervasive or other nature of the questioning makes it obvious that it is necessary to stop the deposition and seek relief under Rule 30[d][3] for being conducted in a manner evidencing bad faith, or to embarrass, annoy, or oppress the deponent. The mere fact that more than one alleged irrelevant question is asked, or even that a series of alleged irrelevant questions are asked does not, by itself, constitute annoyance or oppression contemplated by [30][d][3]. "A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph [3].” [emphasis added]. Fed.R.Civ.Proc. Rule 30[d][1].


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