We have all been there. You're taking a deposition and your opposing counsel channels a $10,000 Pyramid contestant coaxing his teammate to say, "Every conceivable objection under the sun?" These attorneys act like their year-end bonus is based on the number of objections lodged after each question. While it can be annoying, deposition objections are mostly white noise for the examining lawyer. However, there is value in discerning which objections matter, and which objections can be ignored. Developing a systematic approach to deal with deposition objections is a necessary skill for litigators, and this article provides both authority and guidance for some of the trickier objections commonly heard at depositions.
Objections to the Admissibility of Evidence
Anyone with a basic grasp of deposition fundamentals knows the misplacement of objections to an answer's admissibility. Objecting to a question's "relevance" or claiming the answer calls for "hearsay" has no place in a deposition. And except for the truly uninitiated, these objections do not come up much.
But what about those objections that are admissibility-objections in disguise? And what about admissibility-objections that are not asserted until trial? Should the witness become unavailable and the deposition must be read to the jury, the trial judge will allow counsel to assert any admissibility-related objections then. Accordingly, the admissibility of testimony should always be considered when taking (or defending) a deposition.
Consider, for example, the objection that a question calls for an answer before laying an adequate foundation. Foundation is about the admissibility of testimony. Except for expert opinion testimony, "the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter." Cal. Evid. Code § 702(a). At trial, if a lay witness is asked about something before personal knowledge is established, opposing counsel may object that the anticipated testimony lacks foundation. See West v. Sundown Little League of Stockton, Inc., 351 Cal. App. 4th 351, 358 (2002). An easy example looks something like this:
Q What is your name?
A Mr. Witness.
Q Mr. Witness, are you aware that there was an automobile collision on January 1, 2017, at the intersection of Main and Broadway?
Q What color was the traffic light on Broadway at the time of the collision?
LAWYER: Objection. Lacks foundation.
If objections based on foundation go to the admissibility of evidence (and not the form of the question), why do we hear them at depositions? Are lawyers required make foundation objections during depositions? The answer depends on whether the case is pending in California state or federal court. In California, except for privileges, deposition objections should only be to the form of a question. Cal. Civ. Proc. Code § 2025.460(b). Accordingly, practitioners in California state court cases are told that "[i]nexperienced counsel often raise objections on such grounds as 'relevancy,' 'hearsay,' or 'lack of foundation.' These do not go to the form of the question and, in view of the broad scope permitted in discovery, such objections are improper. Persistence in making such improper objections may constitute discovery abuse." Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 8:722.1 (emphasis in original).
Not only are objections to foundation in California state cases improper, there is a strategic downside in asserting them. Consider the hypothetical deposition above. Hearing the objection, the examining attorney could remedy any foundational issues with a series of questions establishing that the witness personally saw the traffic light moments before the collision. It is for this reason that California practice guides warn attorneys not to "get 'trapped' by opposing counsel's not objecting to your questions: ... if you try to use [a] deposition as evidence at trial, you're bound to run into an objection at the time of trial that there was 'no foundation' for the deponent's testimony, and the testimony is therefore incompetent." Id. at ¶ 8:730.
Accordingly, if you are defending a deposition in California state court and the examining attorney fails to establish personal knowledge, stay quiet. When taking a deposition and there is a foundation objection, consider whether some follow-up questions are needed to establish personal knowledge. At the same time, do not be lulled into believing that foundation is established by the defending counsel's failure to object.
The issue in federal cases is different. Like California, the general rule is that objections should only be to the form of the question. Fed. R. Civ. P. 32(d)(3). Practitioners are thus cautioned that "[i]f you intend to use deposition testimony at trial (and you usually do), phrase your questions to avoid all substantive objections—i.e., hearsay, no foundation, conclusions, etc. Otherwise, you may find you have conducted an expensive discovery procedure that does you little good in the long run." O’Connell & Stevenson, Fed. Practice Guide: Fed. Civil Procedure Before Trial (The Rutter Group 2017) ¶ 11:1558.
But there is an important exception to the general rule of form-only objections in federal cases. As one treatise explains:
However—and this is an important "however"—even [other] objection[s] must be made at the deposition if the evidentiary defect presented by the question can be cured at the deposition. Too many lawyers believe that they need to object only as to the form of a question, and that all objections regarding the question's substance are preserved.... [A]s a defender you may need to object to the competency of a witness, to questions that seek inadmissible opinion or conclusion (for example, when a law witness is asked for a legal conclusion), and to questions that lack foundation or are speculative....
Hecht, Henry L., Effective Depositions 354 (2nd ed. 2010) (emphasis in original).
Specifically, FRCP 32(d)(3)(A) provides that "[a]n objection to a deponent's competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time." As a result, several district court judges have articulated that "lack of foundation" is a per se proper deposition objection. According to one judge:
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.”
Security National Bank of Sioux City, Iowa v. Abbott Laboratories, 299 F.R.D. 595, 601 (N.D. Iowa 2014) (emphasis added) citing NGM Ins. Co. v. Walker Const. & Dev., LLC, No. 1:11-CV-146, 2012 WL 6553272, at *2 (E.D. Tenn. Dec. 13, 2012).
Turning back to the hypothetical above, the defending lawyer would need to assert an objection that the testimony lacked foundation because the witness' ostensible lack of personal knowledge "might have been corrected at that time." Fed. R. Civ. P. 32(d)(3)(A). Accordingly, lack of foundation is a proper and necessary objection to be made in federal court cases. Similarly, the examining attorney should look to correct any lack of personal knowledge in the event the objection is asserted.
Do Documents Really Speak for Themselves?
"Objection. The document speaks for itself." This is one of those objections that is both ubiquitous and meaningless. Nowhere in California's Evidence Code or the Federal Rules of Evidence is there any discussion about documents speaking for themselves. This objection is essentially short-hand for a number of other potential objections—all of which are improper at a deposition.
For example, the objection can sometimes mean the defending attorney simply objects to a witness being asked about a document without being shown the document. There is no authority to support this objection. There is no such requirement in the Federal Rules of Evidence, and Section 768(a) of California's Evidence Code provides that, "[i]n examining a witness concerning a writing, it is not necessary to show, read, or disclose to him any part of the writing." Even when examining a witness about a prior statement, there is no requirement that the examining attorney disclose the statement to the witness. See Fed. R. Evid. 613; Cal. Evid. Code § 769.
The "document speaks for itself" objection can also be an improper relevance objection in disguise. For example, a witness may be asked to explain his or her understanding of a contract, but such an understanding might be irrelevant. See e.g., Cal. Civ. Code § 1638 ("The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity."). And while objecting to such evidence is completely proper at trial, it is improper at deposition. See e.g., Cal. Civ. Proc. Code § 2017.010 ("[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence."); see also Bridgestone/Firestone, Inc. v. Superior Court, 7 Cal. App. 4th 1384, 1391 (1992) ("Relevancy to the subject matter has been construed to be broader than relevancy to issues and may vary with the size of the case.").
Finally, "the document speaks for itself" objection may mean the objecting party is asserting the secondary evidence rule. But this is just another improper relevance objection in disguise. The secondary evidence rule provides that the content of a writing may be proved by oral testimony, but there are several requirements. See Cal. Evid. Code § 1523; Fed. R. Evid. 1004. For example, if the proponent of a writing is relying on oral testimony (instead of the document itself) to prove its contents, there must be evidence that the proponent does not have the document and that it was not lost or destroyed by the proponent. Cal. Evid. Code § 1523(b). Whether such testimony is proper is issue of admissibility, not discoverability, and thus should not be made at deposition.
Objections to Legal Conclusions or Contentions
This objection comes up fairly regularly, and defendants will occasionally cite to Rifkind v. Superior Court, 22 Cal. App. 4th 1255 (1994). While Rifkind does hold that that legal contention questions are improper at deposition, the rule is reasonably narrow. Rifkind involved a dispute between two lawyers who worked as co-counsel on an airplane crash case. Id. at 1257. Following a settlement, the two attorneys disputed the division of fees, and the plaintiff attorney Ned Good sued Robert Rifkind. Id. During Mr. Rifkin's deposition, he was asked about various affirmative defenses alleged in his answer:
While the phrasing of these questions varied, they all involved the same three inquiries about Mr. Rifkind's affirmative defenses:
1. State all facts that support the affirmative defense.
2. State the identity of each witness who has knowledge of any facts supporting the affirmative defense.
3. Identify any documents that pertain to the facts or witnesses.
Id. at 1258.
Rifkind held that the questions were improper because "legal contention questions require the party to make a 'law-to-fact application that is beyond the competence of most lay persons.'" Id. at 1262, citing 1 Hogan, Modern California Discovery (4th ed. 1988) § 5.9, p. 252. The Court further reasoned that such questions' "basic vice when used at a deposition is that they are unfair." Id. But while questions that ask a witness to make a “law-to-fact application” are not proper, “[i]f the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory.” Id. (emphasis added). The Court made clear that questions asking for the bases for factual assertions is proper:
We emphasize at the outset what we are not discussing: questions at a deposition asking the person deposed about the basis for, or information about, a factual conclusion or assertion, as distinguished from the basis of a legal conclusion. Thus, if a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her knowledge about it, and for similar information of a factual nature.
Id. at 1259.
The questions at issue in Rifkind are fairly easy to identify as improper. Asking a witness to identify all facts in support of an affirmative defense clearly calls for a “law-to-fact” application. But what about questions that ask a witness about the formation of a contract? Or the breach of a contract? On these types of issues, it is important the question ask for facts instead of contentions. To illustrate:
Improper: State all facts to support you contention that you and Mr. Defendant formed a contract?
Proper: Why do you believe that you and Mr. Defendant had an agreement?
In addition to some practitioners overusing Rifkind objections, they will wrongly assume that it provides a special ground to instruct the witness not to answer the question. This is not the law. The only ground to instruct a witness not to answer a question is when the question calls for information protected by a privilege. See Stewart v. Colonial Western Agency, Inc., 87 Cal. App. 4th 1006 (2001). Stewart articulates the rule regarding instructions not to answer as follows: “[Y]ou are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged. The proper procedure is to adjourn the deposition and move for protective order. You don’t assume the role of judge and instruct a witness not to answer a question at a deposition. That is a big no-no.” Id. at 1011.
Deposition objections should not be a distraction. They should not divert the examining attorney's focus from the witness. Knowing these rules and having a systematic approach to dealing with objections will allow the practitioner to effortlessly discern the noteworthy from the nonsense.
David Sugden is a shareholder at Call & Jensen. He can be reached at [email protected].
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