Preserving Deposition Objections

Posted on November 1, 2015 | Filed under: Discovery

In a recent case now concluded, I revisited the law governing deposition objections.   My review reminded me about the risk of waiver created by undue passivity in a deposition.

In every deposition taken lurks the possibility that it will be offered into evidence at trial.  Depositions of parties, treating physicians and other persons identified in Va. Sup. Ct. R. 4:7 may be introduced into evidence at trial. Witnesses can move and die between deposition and trial.   For this reason, vigilance is demanded during a deposition to ensure that appropriate objections are made and preserved.  Otherwise, a waiver may defeat a party’s trial objection to admission of deposition testimony.

Examination and cross-examination of deposition witnesses may proceed as permitted at trial. Va. Sup. Ct. R. 4:5 (c).  “Objections to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.”  Va. Sup. Ct. R. 4:7 (3) (C).  If the objection is to the form of a question and might have been cured (eg., leading question, lack of foundation), a contemporaneous objection must be stated with reasonable certainty in accordance with Virginia Rule of Evidence 2:103 (a) (1).

Errors occurring during the deposition in the form of questions or answers and errors of any kind which might be obviated, removed if promptly presented, are waived unless seasonable objection thereto is made at the deposition.  Va. Sup. Ct. R. 4:7 (3) (B).   According to the Supreme Court, “during a deposition, when an error in the form of a question by counsel or of an answer given by a witness can be cured by a timely objection, the objection must be stated timely or will be deemed waived.”  Graham v. Cook, 278 Va. 233, 246, 682 S.E.2d 535, 542 (2009).

In addition to being timely, objections must be specific.  One of the reasons for requiring a specific contemporaneous objection is to afford the opposing party to meet the objection.   Graham, 278 Va. at 248, 682 S.E.2d at 543; Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 168, 427 S.E.2d 724 (1993).  Simply saying “Objection, foundation” or “Objection, form” is insufficient.  See Arnold v. Wallace, 283 Va. 709, 714, 725 S.E.2d 539, 542 (2012); Jones v. Ford Motor Co., 263 Va. 237, 259, 559 S.E.2d 592, 603-04 (2002).  Accordingly, in instances in which  counsel merely states “Objection, form” or “Objection, no foundation” to a question during the deposition, the objection lacks the required specificity to support a subsequent motion to exclude from trial evidence the deposition testimony at issue.

The complaints voiced about “improper hypothetical” and “speculative”  without  any specifics about the alleged foundational flaws will not preserve an objection for the consideration of the trial court.  “General objections to questions of this character are of little aid to the trial court. If matters are stated which ought to be excluded, or if matters are excluded which ought to be stated, the objection should be so framed as to show just what the trouble is.”  Flannagan v. Nw. Mut. Life Ins. Co., 152 Va. 38, 70, 146 S.E. 353, 362 (1929).

If there be any material fact or testimony omitted in a hypothetical question posed to the deponent, it is the duty of opposing counsel to clearly indicate such defects, to enable such omissions in the question to be remedied, so as to enable the deponent  to answer the question after being fully and definitely informed of all such material facts.  See Bowen’s Ex’r v. Bowen, 122 Va. 1, 5, 94 S.E. 166, 167 (1917).

Courts have campaigned with good reason against the vice of “speaking objections” which improperly coach witnesses and thwart the orderly and efficient course of a deposition. Any objection must therefore be stated concisely in a nonargumentative and nonsuggestive manner.  Va. Sup. R. 4:5 (c).  Between no objection and speaking objections space exists for lawyers to make an objection pointing out with specificity the flawed nature of a question.  Failing to so state specific objections curable at the time of the deposition waives any right to object at trial when the deposition is offered into evidence.