I recently came across an interesting Order (available here) from the Northern District of Iowa imposing sanctions against an attorney for conduct that occurred in depositions in Security National Bank v. Abbott Laboratories. The Court ultimately ordered the attorney to produce a training video that “provides specific steps lawyers must take to comply with” the Court’s Order. The Order is worth a read, as it details some of the abuses that occur in discovery in federal litigation. (On a related note, Steve Susman and Tom Melsheimer filed an amicus brief in support of the Court’s decision on appeal (available here), which is also worth a read.)
While there were many problematic areas of conduct identified by the Court, I would like to focus on the Court taking issue with the practice of making “form” objections. The Court wrote:
In defending depositions related to this case, Counsel proliferated hundreds of unnecessary objections and interruptions during the examiner’s questioning. Most of these objections completely lacked merit and often ended up influencing how the witnesses responded to questions. In particular, Counsel engaged in three broad categories of improper conduct. First, Counsel interposed an astounding number of “form” objections, many of which stated no recognized basis for objection. Second, Counsel repeatedly objected and interjected in ways that coached the witness to give a particular answer or to unnecessarily quibble with the examiner. Finally, Counsel excessively interrupted the depositions that Counsel defended, frustrating and delaying the fair examination of witnesses. (emphasis added)
The Court faulted counsel for “simply object[ing] to ‘form,’ requiring the reader (and, presumably, the examiner) to guess as to the objection’s basis.” The Court further stated:
In my view, objecting to “form” is like objecting to “improper”—it does no more than vaguely suggest that the objector takes issue with the question. It is not itself a ground for objection, nor does it preserve any objection. Instead, “form” objections refer to a category of objections, which includes objections to leading questions, lack of foundation, assuming facts not in evidence, mischaracterization or misleading question, non-responsive answer, lack of personal knowledge, testimony by counsel, speculation, asked and answered, argumentative question, and witness’ answers that were beyond the scope of the question. . . . [This Court would find that] lawyers are required, not just permitted, to state the basis for their objections. (citation and quotations omitted).
The Court did note, however, that “that not all courts share my views regarding ‘form’ objections. In fact, some courts explicitly require lawyers to state nothing more than unspecified ‘form’ objections during depositions.” Because there was authority supporting “form” objections, the Court declined to grant sanctions on this ground. The Court instead issued the following warning to lawyers: “Although I do not impose sanctions based on Counsel’s ‘form’ objections in this case, lawyers should consider themselves warned: Unspecified ‘form’ objections are improper and will invite sanctions if lawyers choose to use them in the future.”
I found this discussion interesting, as Texas lawyers routinely object to deposition questions based on “form” alone. In fact, doing so is required under the Texas Rules of Civil Procedure:
Objections to questions during the oral deposition are limited to “Objection, leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, nonresponsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court. The objecting party must give a clear and concise explanation of an objection if requested by the party taking the oral deposition, or the objection is waived. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing costs or other sanctions.
Tex. R. Civ. P. 199.5(e) (emphases added).
The Eastern District of Texas has a similar local rule:
Objections to questions during the oral deposition are limited to “Objection, leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, nonresponsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court. The objecting party must give a clear and concise explanation of an objection if requested by the party taking the oral deposition, or the objection is waived.
E.D. Tex. Local Rule CV-30 (emphases added).
The Northern District of Texas does not have a Local Rule on point, but the general practice, at least in my experience, is to follow the Texas Rules and the Eastern District of Texas Rules when objecting. (Federal Rule of Civil Procedure 30(c)(2) simply states: “[a]n objection must be stated concisely in a nonargumentative and nonsuggestive manner.”).
From my experience, the Texas practice is preferable to the practice contemplated (or rather, required) by the Court in Security National Bank, as the “objection, form” route makes depositions go quicker and cannot be used to “coach” the witness (or at least cannot be used to coach the witness as easily as stating the “basis” for the objection (e.g., “calls for speculation,” “hearsay,” etc.)). With respect to the Security National Bank court’s concern that “form” objections make it difficult for the Court to rule on objections, this may be true, but with over 95% of cases settling before trial, and the vast majority of depositions not being used at those trials that do go forward, I don’t view the potential benefit as outweighing the downsides.