Let's get objective about objectionable objections.

• Author: Gibbs, J. Evan, III
• Position: Labor and Employment Law

Depositions are typically the only time that a party or witness will give testimony in a case since so few employment cases go to trial. Experience tells us that for this reason, lawyers routinely use depositions to "grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party." (1) As one federal judge lamented recently, obstructionist deposition tactics have seemingly become routine, and even expected, in modern discovery practice. (2) Objections during depositions are, therefore, commonly employed to break up the cadence of an opposing attorney's questioning, indirectly guide the witness toward a specific answer (or nonanswer), or even distract the questioning lawyer away from a potentially volatile question or line of questioning.

These practices have led to frustration from the bench at both the federal and state levels. In one particularly noteworthy case, Security National Bank of Sioux City, Iowa v. Abbott Labs, 299 F.R.D. 595, 597 (N.D. Iowa 2014), (3) U.S. District Judge Mark W. Bennett issued a scathing order sanctioning a defense lawyer for conduct during several depositions in the case. (4) Judge Bennett's sanction was that the offending attorney write and produce, on her own with only technical assistance, an instructional video explaining why unspecified "form" objections, witness coaching, and excessive interruptions are improper during depositions. (5)

In light of Abbott Labs and other recent decisions, this article explains proper and improper deposition objections and other deposition conduct. It also (hopefully) provides an easy reference for lawyers to use when taking or defending depositions.

The Scope of Depositions and Objection Basics

Under the federal and state rules, deposition testimony can be used for a variety of purposes, including evidentiary support for motions, impeaching, or contradicting witnesses at hearings or trial, and it can be read into evidence before the jury when the deponent is not available. (6) Given the many uses of deposition testimony, the federal and state rules allow attorneys wide latitude as to the scope of questioning in depositions, permitting questioning as to any nonprivileged matter that is relevant to the subject matter of the pending action. (7) The scope of questioning in depositions, therefore, is very broad and the restrictions on such questioning are directed primarily "at the use of, rather than the acquisition of, the information discovered." (8)

Rule 30 of the federal rules states: "An objection must be stated concisely in a nonargumentative and nonsuggestive manner." (9) Since its Florida counterpart was derived directly from Rule 30, (10) Fla. R. Civ. P. 1.310 follows the federal rule almost verbatim: "Any objection during a deposition shall be stated in a concisely and in a nonargumentative and nonsuggestive manner." (11)

Form Objections

Many (and probably most) lawyers have been trained that the only proper deposition objection as to the form of a question is simply, "Objection, form," or something very similar. The Abbott Labs court, however, stated that objecting to "form" is like objecting to "improper" in that it does nothing more than vaguely suggest to the questioner that the opposing attorney takes some issue with the question. (12) The court explained that "form" refers a broad category of specific objections, and, therefore, "saying 'form' to challenge a leading question is as useful as saying 'exception' to admit an excited utterance." (13)

According to the Abbott Labs court then, unspecified "form" objections do not actually alert the questioner to what the specific alleged defect is, preventing the questioner from immediately curing the objectionable part of the question. (14) Instead, the questioner must ask the objecting lawyer to clarify, which can sometimes take substantial time and increases the amount of "objection banter" between the lawyers. (15)

The court in Henderson v. B&B Precast & Pipe, LLC, 2014 WL 4063673 (M.D. Ga. 2014), took a similarly tough stance on "form" objections during depositions in that case. The court specifically stated, "This objection is meaningless standing alone and is contrary to what is contemplated by the Federal Rules of Civil Procedure." (16) Judge Land in Henderson explained that simply objecting to a question by stating "form" probably does not preserve the objection because it does not indicate what is wrong with the question, depriving the questioning lawyer the chance to cure the alleged issue during the deposition. (17)

The Henderson court further expanded on...