Deposition Procedure
After the witness is sworn and the deposition officer provides the standard information on the record, examination of the witness begins. First, there is direct examination, which is defined as the initial “questioning of a witness in a trial or other proceeding (including a deposition) conducted by the party who called the witness to testify.”[1] It is commonly known as “direct,” for short.
Once the party who noticed (or called for) the deposition has completed his direct examination of the witness, opposing counsel can “cross-examine” the deponent. “Cross-examination” is defined as the “questioning of a witness at a trial or hearing (or deposition) by the party opposed to the party who called the witness to testify.”[2] While the purpose of direct examination is to obtain information from the witness that is helpful to the party who called the witness, the purpose of cross-examination is usually to discredit the witness by pointing out inconsistencies in testimony and prior statements, or by getting the witness to make admissions that weaken his testimony for the other party. Just as with direct examinations however, during cross-examination opposing counsel can object to the form or substance of questions.
Objections
While objections are commonly thought of as trial devices, they are also commonly made at depositions, although the evidentiary rules differ between trials and depositions.
An “objection” is defined as “a formal statement opposing something that has occurred, or is about to occur, in court, a hearing, or a deposition and seeking the judge’s immediate ruling on the point.”[3] In the case of a deposition, there is no judge there to give an immediate ruling and so objections serve to prevent the question from being answered until later settled by a judge (if the party asking the question does not agree to withdraw it and the parties cannot settle the issue by themselves). Objections can be made to a question asked or to an answer that is given by the witness. An example would be when an answer given does not answer the question asked. In that case the appropriate objection is that the answer is “nonresponsive,” and the deponent will be asked to answer the question directly.
Objections can also be made when counsel anticipates that something objectionable is about to be stated by the witness. For example, if a question from examining counsel asks the witness to provide information that is privileged or subject to a protective order, opposing counsel can object before the witness provides the answer.
Objections can be placed into two categories: those that object to the form of the question and those that object to the substance of the question. Form objections include that the question leads the witness while substantive objections include that the question calls for privileged information.
Objections can also specific, general or continuing. The objecting party must state the basis for the objection under the rules of evidence to preserve the right to appeal if the objection is overruled and the information is admitted into evidence.[4] An objection that specifies its basis is called a “specific objection.” If the objecting party does not state the basis for the objection but merely states “objection” without providing more detailed information, the objection is considered “general.” General objections only preserve the issue for appeal as if the objection was to relevancy.[5] “Continuing objections” allow the objecting party to make one objection to an entire line of questioning, and thereby avoid having to object individually to each question in that specific line of questioning or on that topic.[6]
The rules of objections are comparable whether at trial or deposition, although the standards of evidence are different. For example, hearsay is not admissible at trial, while it is discoverable. In addition, objections at the taking of a deposition can become confusing because the testimony is not taken in a courtroom. Therefore, a judge is not immediately available to sustain or overrule objections. For this reason, special procedures apply.
According to the Federal Rules of Civil Procedure, there are two significant ways that objecting at depositions is different from objecting to courtroom testimony.
First, although parties object at depositions, evidence is taken despite objections (the deponent answers the objected to question). Objections are noted on the record and the examination continues. The court determines the admissibility of the testimony or evidence later. The only exceptions where the evidence will not be taken subject to the objection are when:
- An attorney instructs his client to not answer a question because the testimony sought is privileged;
- Refusing to answer is necessary to enforce a court-ordered limitation upon discovery; and
- A party intends to present a motion to terminate or limit the deposition.[7]
Second, there are two types of objections that must be made at the deposition or they are waived. The first are objections as to privileged information and the second is objections that could have been cured at the deposition without the assistance of a judge.[8] Other types of objections remain available later even if not made at the deposition. Conversely, at trial, most objections are waived if not made in a timely manner.
For example, generally objections as to the form of the question – for example, if the question is repetitive or confusing – are waived if they are not objected to at the deposition. If the party objects at the deposition, the question can be amended, and the issue would easily be resolved without the assistance of a judge.
In contrast, it is generally more difficult for the parties to resolve objections to the substance – the information sought by the question – without the help of a judge. Instead, these types of objections are generally preserved for trial whether they are raised at the deposition or not.
Either way, if the objection could have been resolved by the parties at the deposition (without the assistance of a judge) but the objection was not made, then the objection is waived. On the other hand, if the objection could not have been resolved at the deposition, then it is not waived if not raised. To avoid confusion in applying the rule, some attorneys simply stipulate that all objections as to substance are preserved, while all objections as to form are waived if not raised at the deposition.[9]
Although judges are not present at depositions, it may be possible to get a judge on the telephone to make a ruling on an objection. Alternatively, an attorney could adjourn or postpone the deposition and file a motion to limit discovery, if the deposition is conducted in bad faith or in an abusive manner, or a motion to compel discovery if opposing counsel incorrectly instructs his or her witness to not answer.[10] Attorneys must be careful not to terminate a deposition if there are still additional questions they would like to ask. Per Federal Rule 30(a)(2), an attorney must seek leave of court to depose a witness a second time in the same case.
If an attorney is concerned that his witness may be asked inappropriate questions during a deposition, the attorney may seek a protective order prior to the deposition or wait to see if opposing counsel asks the inappropriate questions and then instruct the deponent to not answer and hope the judge agrees that the instruction was correct.[11]
Objections to questions on written depositions are handled differently than objections at oral depositions. Objections at written depositions must be served in writing upon the party who posed the question before the deadline for responses to those questions. Since written depositions proceed as direct, cross, re-direct and then re-cross examination, there is no deadline for responses for re-cross questions. So, if there is an objection to a question posed during re-cross examination, the objecting party has seven days to respond.[12]
Use of Depositions at Trial
Depositions can be used against a party at a hearing or trial if that party was present or represented at the deposition or had reasonable notice of the deposition; and so long as the use follows the rules of evidence and Federal Rule 32(a) of the Rules of Civil Procedure.[13]
Federal Rule 32(a)(2) states that when a deponent later testifies in court, deposition answers can be used to impeach or contradict the courtroom testimony, as well as for any purpose allowed under the rules of evidence.[14] That means that the deposition testimony can be used to contradict the trial testimony or it can be used substantively to prove the facts stated in the deposition.
Federal Rule 32(a)(3) applies where a party is an organization, and the deponent was the person that the organization designated to answer deposition questions on the organization’s behalf (usually an officer of the corporation). The rule states that an adverse party can use the deposition of the designated representative at trial for any purpose.
Subsection (4) outlines the use of depositions as trial testimony when the deponent is unavailable for trial. A party can use a witness’s deposition for any purpose (substantive or impeachment), if the court finds that:
- The deponent is dead;
- The deponent is located more than 100 miles from the court or outside the U.S. and the party seeking to use the deposition did not cause the witness’s absence;
- The deponent cannot attend court due to illness, infirmity, age or imprisonment;
- The party who wants to use the deposition first attempted to secure the witness’s attendance at trial via subpoena; or
- A party moves to use the deposition, citing exceptional circumstances, and the court agrees that use of the deposition should be allowed in the interests of justice.[15]
Subsection (5) outlines two limits on the use of depositions in the courtroom. First, a deposition cannot be used against a deponent in the courtroom when the deponent was given short notice of the deposition, the deponent filed a motion for protective order to have the deposition cancelled or time or place of the deposition moved and the deposition was taken nonetheless before the court made a decision on the motion.[16] This rule ensures that parties cannot intentionally give a deponent short notice of depositions and then use the unprepared deposition testimony against the witness at trial.
Second, if a deposition is taken without leave of court, and the deponent could not, despite diligent efforts, obtain an attorney to represent him at the deposition, then the deposition cannot be used against the deponent at trial.[17]
Subsection (6) of the rule addresses partial use of depositions. Although a party is allowed to use part of a deposition at trial, an adverse party can require that other parts of that same deposition also be introduced as required by fairness.[18] This would apply for instance, if the bulk of a deponent’s testimony was harmful to a party, but that party tries to enter the only sentence in the deposition that helps his case. This would give a distorted or out-of-context view of the deponent’s testimony. The opposing party can thus have any additional portions of the deposition introduced as well.
Subsection (7) applies where, after depositions are taken, one party is substituted for another. The rule ensures that despite the substitution of a different party, the depositions previously taken can still be used at trial.[19] Examples where one party may be substituted for another would include where one party dies but the death does not extinguish the legal claim, or if one party becomes incompetent, the court may substitute the incompetent party’s representative. Other potential substitutions are outlined in Rule 25 of the Federal Rules.[20]
Finally, subsection (8) addresses the use of depositions taken in earlier actions. Parties can use at trial depositions that were taken in different lawsuits if they cover the same subject matter that is covered in the current litigation, and the prior lawsuit was between the same parties or their representatives.[21]
For example, depositions in a prior legal action may be considered covering the “same subject matter” as current litigation if both the prior action and the current action relate to the deponent’s health, and both the prior and current lawsuits are between the deponent and his employer’s workers’ compensation insurance company. This would be common when a worker incurs multiple injuries on-the-job over the course of several years of employment. In such a case, attorneys would be allowed to use the injured party’s deposition from the prior case during the trial on the subsequent injury. The prior deposition could be used to contradict the deponent’s testimony at trial, or to prove the facts that were asserted in the prior deposition.
Objections to the admissibility of deposition testimony at trial can be made in the same way they would if the witness were present and testifying live at trial unless the objections were waived by not having been raised at the deposition.[22]
Objections to an error or irregularity in the taking of the deposition are typically waived if not made at the deposition. Such objections would include those that relate to the form of a question or response, or the oath or affirmation[23] Objections to the way a deposition is taken may also include such things as objections to the use of videotaping when deponent was unaware of the videotaping and appeared dressed in a manner that would prejudice his testimony. Another example would be if the questions, though technically correct, are being asked in a nasty and harassing manner. Objections to these situations must be made at the deposition or are waived.
Objections to the deposition notice, the deposition officer’s qualifications, or how the officer recorded the testimony are also waived if not promptly served, in writing, on the party noticing the deposition.[24] Finally, any objections to the preparation or return of the deposition, including certification, seal, or delivery, are waived unless the objecting party promptly files a motion to suppress the deposition as soon as the reason for the objection is known or reasonably could have been known.[25]
[1]Black’s Law Dictionary (Seventh Edition, 1999), Definition: direct examination,p. 472. St. Paul, Minn.: West Group.
[2]Black’s, Definition: cross-examination, p. 383.
[3]Black’s, Definition: objection, p. 1101.
[4] Black’s, Definition: objection, p. 1101.
[5] Id. Definition: general and specific objections, p. 1101.
[6] Id. Definition: continuing objection, p. 1101.
[7]FRCP 30(c)(2).
[8] McElhaney at 37
[9] McElhaney at 37
[10] McElhaney at 40-41.
[11] McElhaney at 41.
[12]FRCP 32(d)(3)(C).
[13] FRCP 32 (a)(1).
[14] FRCP 32(a)(2).
[15] FRCP 32(a)(4).
[16] FRCP 32(a)(5)(A).
[17] FRCP 32(a)(5)(B).
[18] FRCP 32(a)(6).
[19] FRCP 32(a)(7).
[20] https://www.law.cornell.edu/rules/frcp/rule_25
[21] FRCP 32(a)(8).
[22] FRCP 32(b).
[23] FRCP 32(b) and (d)(3).
[24] FRCP 32(d)(1).
[25] FRCP 32(d)(4).