casemark/deposition-objection-reference

Deposition Objection Reference

Quick reference for making and preserving objections under FRCP 30(c)(2). Covers form objections (waived if not raised), substantive objections (preserved for trial), and the three exclusive grounds for instructing a witness not to answer.

Fundamental Rules

• Witness still answers — most objections preserve the record only; witness answers unless instructed not to
• Concise and non-suggestive — FRCP 30(c)(2) requires objections "stated concisely in a nonargumentative and nonsuggestive manner"
• Form objections waive — must be made at the deposition or lost (FRCP 32(d)(3))
• Instructions not to answer — only 3 valid grounds exist under FRCP 30(c)(2)

Proper: "Objection, leading." / "Objection, assumes facts." Improper: "Objection, that question is confusing and compound and assumes facts..." (speaking objection) Improper: "Objection — the witness already told you he doesn't remember that." (coaching)

Form Objections (Waived If Not Made)

| Objection | Trigger | Phrasing | |-----------|---------|----------| | Compound | Two+ questions in one | "Objection, compound." | | Leading | Suggests the answer (mainly when defending own witness) | "Objection, leading." | | Assumes facts | Presupposes unestablished fact | "Objection, assumes facts." | | Vague | Unclear referent or undefined term | "Objection, vague." | | Unintelligible | Question doesn't parse | "Objection, unintelligible." | | Speculation | Asks witness to guess | "Objection, speculation." | | Narrative | Overly broad; use sparingly | "Objection, narrative." | | Mischaracterizes | Inaccurately summarizes testimony or document | "Objection, mischaracterizes testimony." | | Argumentative | Debates rather than seeks facts | "Objection, argumentative." | | Asked and answered | Same question already fully answered | "Objection, asked and answered." | | Foundation | Personal knowledge not established | "Objection, foundation." |

Substantive Objections (Not Waived — Preserved for Trial)

| Objection | Notes | Phrasing | |-----------|-------|----------| | Relevance | Low threshold in discovery (FRCP 26(b)(1)); don't overuse | "Objection, relevance." | | Hearsay | Witness still answers; admissibility at trial | "Objection, hearsay." | | Privilege | May warrant instruction not to answer | "Objection, attorney-client privilege." | | Beyond scope (30(b)(6)) | Exceeds noticed topics; witness may answer on personal knowledge | "Objection, beyond scope." |

Instructions Not to Answer

FRCP 30(c)(2) permits instruction not to answer on exactly three grounds.

1. Privilege

Covers attorney-client, work product, spousal, doctor-patient, priest-penitent.

Procedure: state the privilege on the record, instruct not to answer, briefly state the basis, log on privilege log if demanded.

Example: "Objection, attorney-client privilege. I instruct the witness not to answer. The question seeks communications made for the purpose of obtaining legal advice."

Caution: privilege waived by prior voluntary disclosure or presence of third parties.

2. Court-Ordered Limitation

A protective order or court order restricts the topic or manner.

Example: "Objection. The Court's protective order dated [date] prohibits inquiry into the manufacturing process. I instruct the witness not to answer."

3. Motion to Terminate — Bad Faith (Rule 30(d)(3))

Questioning is conducted in bad faith or to harass. State on the record you are suspending, then promptly file under Rule 30(d)(3). Sanctions risk if court disagrees — use only when conduct is egregious.

Invalid Grounds for Instruction Not to Answer

• Relevance alone
• Embarrassment (unless harassment threshold met)
• Answer harmful to your case
• Witness claims not to know (correct answer: "I don't know")
• Form defects (object, but witness answers)
• Hearsay
• Beyond scope in a regular (non-30(b)(6)) deposition

Pre-Deposition Checklist (Defending Counsel)

• [ ] Identify privilege areas; brief witness that you may instruct not to answer
• [ ] Review protective orders; know restricted topics
• [ ] Prepare witness: objections don't signal how to answer
• [ ] Identify mischaracterization risks (prior testimony, key documents)
• [ ] Assess whether Rule 30(d)(3) papers should be ready
• [ ] For 30(b)(6): map noticed topics; designate scope on the record

Pitfalls

• Never coach through objections — adding substance after "objection" is sanctionable
• Don't over-object — signals importance to opposing counsel and appears obstructionist
• Always state the ground when instructing not to answer — bare instructions invite sanctions
• State rules vary — California, New York, and others have deposition conduct rules differing from FRCP; verify local rules
• Key authority: Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) — seminal case on speaking objections and coaching (verify current status in your jurisdiction)