Evidence Issues in Depositions and Discovery Depositions

• Jurisdiction: Colorado

Evidence Issues in Depositions and Discovery Depositions

Examination and Cross-Examination

• Examination and cross-examination in a deposition may proceed as permitted at trial according to the Colorado Rules of Evidence, except CRE 103. C.R.C.P. 30(c).
• Evidence is taken subject to objections.

Objections

• Objections during a deposition should be stated concisely and in a non-argumentative and non-suggestive manner.
• When a deposition or any part is offered as evidence at trial, counsel may object to evidence that would be objectionable if the witness were present and testifying. C.R.C.P. 32(b).
• Objections to the competency of a witness, or the relevance or materiality of testimony are not waived by a failure to make them before or during the taking of the deposition, unless the ground for the objection is one that might have been obviated or removed if presented at the time of the deposition. C.R.C.P. 32(d)(3)(A).
• Objections to the form of questions or answers must be made at the deposition or lost. This would include leading, lack of foundation, or argumentative. C.R.C.P. 32(d)(3)(B); Seymour v. Dist. Court, 581 P.2d 302 (Colo. 1978).
• During depositions, material may be discovered unless privileged, regardless of its admissibility at trial, if it is reasonably calculated to lead to the discovery of admissible evidence. C.R.C.P. 26(b)(1). Discovery of information reasonably calculated to lead to discovery of admissible evidence should generally be allowed to proceed without obstruction.

Instruction Not to Answer

• Counsel may instruct a witness not to answer a deposition question only if there would be a basis to obtain a protective order, such as the matter is privileged, or if there is a basis to file a motion to terminate the deposition for being conducted in bad faith or to annoy, embarrass, or oppress the deponent or party. Liscio v. Pinson, 83 P.3d 1149 (Colo. App. 2003).
• If you believe counsel has improperly instructed the witness not to answer, make a record of why you believe the instruction is inappropriate and the possible repercussions for failing to answer. Bad faith is conduct that amounts to a flagrant disregard or dereliction of one's discovery obligations, including abusive tactics such as repeatedly asking the same question, asking argumentative questions or questions seeking information not relevant to the litigation, but of a highly personal nature. Liscio v. Pinson, 83 P.3d 1149 (Colo. App. 2003).

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