Chapter 2 - 2.9 Depositions

• Jurisdiction: Virginia

2.9 DEPOSITIONS

2.901 In General. The objections made at a deposition are not considerably different from those made at trial. Any objection must be stated concisely in a nonargumentative and nonsuggestive manner, and objections will be noted but the examination still proceeds.¹⁰⁸ Preservation or waiver of objections made at a deposition is governed by the provisions of Rule 4:7.¹⁰⁹

Examination of a witness at a deposition generally is begun by the party who sent the notice of deposition.¹¹⁰ The rule states that, absent agreement or a court order, only the witness, the parties, their respective counsel including such counsel's staff, experts identified pursuant to Rule 4:1(b)(4)(A), and those involved with the administration of the deposition (such as court reporters and translators) may attend the deposition, given the private nature of discovery.¹¹¹

The Virginia Rules do not make any distinction between discovery depositions and evidence depositions (also known as de bene esse). As such, there is no special rule that applies to one versus the other. Counsel may instruct a deponent not to answer a question only when necessary to preserve a privilege or protection for attorney work product pursuant to Rule 4:5(c)(2), to enforce a limitation ordered by the court, or to present a motion under Rule 4:12(d) to terminate or limit the examination.

Under the Rules of the supreme Court of Virginia, errors and irregularities in (i) the manner of taking a deposition, (ii) the form of a question or answer, (iii) the oath or affirmation of a witness, or (iv) the conduct of the parties, or any errors that could be obviated or cured if promptly presented, are waived unless "seasonable" objection is made during the taking of the deposition.¹¹² A party who expects to use the deposition at trial should try to respond to objections made during the deposition and correct errors of form or substance at the time the deposition is being taken.

Some basic questions that should be asked during every deposition are set forth below. The first four of these questions probably do not have any objectionable basis. Questions five and six probably do have some objectionable basis, as addressed below:

1. Can we agree that if there is anything that you do not fully hear or understand in terms of my questions that you will ask me to either repeat or rephrase my question?

2. Can we agree that if I ask a question and you answer it, I will assume you understand the question?

3. If there is a need for a break, will you please so indicate, and I will accommodate you assuming the request does not come while there is still an answer pending?

4. Are you under the influence of any drug or substance that may affect your ability to give this deposition?

5. Is there anything currently affecting you that you think may impair your ability to give this deposition?

6. What documents have you reviewed in preparation for this deposition?

Objection: To the extent documents were reviewed by the witness, that constitutes attorney work product.

Reply: If the documents contain facts, or if the documents caused you to change any prior recollection that you had of the facts, then they are properly discoverable.

7. Will you name all persons with whom you have had any discussions about the facts of this case in preparation for this deposition?

Objection: Any discussions with counsel are privileged.

Reply: The fact that a discussion with counsel took place is not privileged. The fact of discussions with third parties about the facts of the case is not privileged, nor is the substance of such discussions. Counsel may also ask the witness who was present when the meeting with counsel occurred.

Ask open-ended questions such as:

8. Will you tell me everything you recall about what happened?

9. Is there anything else?

10. Is there anything that you could look at that might help you recall more?

11. Is there anybody you could talk to who might help you remember more?

12. Are there any facts that you can imagine that might trigger more or different memories?

13. This is my only opportunity to question you before trial, and I want to make sure that you have told me everything about that issue so that I am not surprised. Can we agree that you either have or will do that during the course of this deposition?

A final hindsight question could be asked at the end of the deposition as to whether there is anything, in looking back, that the witness could have done differently to prevent the plaintiff's injury.

An important objective during a deposition is to lock down the testimony of the witness for future use at trial. In addition to the above questions, at the end of the deposition the witness should be asked if there is anything that is now recalled if "I don't know" was the answer previously given. There may be other instances where counsel will prefer to forego all of these types of questions and simply proceed directly to the core of the case.

If explanations for an objection are to be made on the record, it probably is a good practice to have the witness excused from the room while that objection is being stated.

Below are some general practice pointers regarding deposition behavior:

1. Counsel should make no objections except those that would be waived if not made during the course of the deposition and those necessary to assert a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate a bad faith deposition;¹¹³

2. Counsel and the non-party witness should not engage in private, off-the-record conferences during depositions or during breaks or recesses except for the purpose of deciding whether to assert a privilege;¹¹⁴

3. Conferences between the witness and counsel are a proper subject for inquiry by the deposing counsel;¹¹⁵

4. It is not appropriate to request a recess in the middle of a line of questions;

5. Reinterpreting or rephrasing the examiner's question is not appropriate;¹¹⁶ and

6. An excessive number of unnecessary objections made by counsel may be sanctionable.¹¹⁷

2.902 Depositions on Written Questions. Rule 4:6 describes the practice of taking depositions on written questions. In many ways, this procedure conforms more closely to the taking of a deposition ore tenus than to other forms of written discovery, with direct, cross, and redirect questions being circulated in turn. Objections that are appropriate in an ore tenus deposition would also apply to this type of deposition.

2.903 Form Versus Content. An objection that goes to the form of the question is an objection that would allow opposing counsel to cure the objection during the course of the deposition by rephrasing the question.¹¹⁸ If the objection is well-made and not cured, the evidence may be excluded. Objections to the form of a question include such matters as leading the witness, argumentative questions, compound questions, vague questions, and improper hypotheticals. Counsel against whom the objection is made should ask for the specific basis of the objection to decide whether to let the question stand or to reformulate it to address the alleged defect. If the objection to form is not made, it is waived.¹¹⁹ For depositions that may need to be used at trial, counsel should craft questions that are not objectionable so that critical parts of the deposition will not be lost.

Objections to content, on the other hand, cannot be cured because the substance of the evidence itself is inadmissible. For example, a hearsay objection goes to content, although in some cases this could be cured at trial. Objections to content generally need not be made during the course of a deposition unless the ground is one that could be cured at that time.¹²⁰ An objection at the time of the examination—whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objections.¹²¹ Counsel may instruct a deponent not to answer a question only when necessary to preserve a privilege or protection for attorney work product pursuant to Rule 4:5(c), to enforce a limitation ordered by the court, or in order to present a motion to the court under Rule 4:5(d) upon a showing that the examination is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the deponent or a party.¹²²

In sum, the only objections that should be raised at a discovery deposition are those based upon privilege, objections to form, or objections based upon the question being beyond the scope of discovery. At a deposition that you know to be an evidence or de bene esse deposition, it probably is the better practice to raise whatever objection you would raise at trial even though that technically is not required by the Virginia Rules since there is no distinction made between a discovery deposition and an evidence deposition. If an attorney or witness is abusive, harassing, or coaching, verbalize the offending conduct or demeanor so that it becomes a part of the record, for example, by asking the person to lower his or her voice or move away from the witness.

It is appropriate to ask the witness for hearsay information. This is not trial. There may, however, be a foundation objection. That is, if the foundation has not been laid with the witness as to how the witness would know about this hearsay, or if the foundation has not been laid to make the hearsay potentially admissible at trial, then:

Objection: Lack of foundation.

Comment: If the witness has any opinion or is willing to speculate, then it may be appropriate to ask for that. Again, this is not trial.

If a question begins with "Is it fair to say . . .":

Objection: Ambiguous, irrelevant.

Reply: I will rephrase the question to ask, "Is it correct to say . . ."

2.904 Agreements by Counsel on...