Episode 120 - Must You Object to An Improper Objection?

Many courts have held that a lawyer who makes a technically-improper objection waives the objection. This often arises in jurisdictions where a form objection must include the legal basis (e.g., "Form, compound"). But since a defective objection could be cured during the deposition upon notice, must the examining lawyer object to the objection to lock in the waiver? Fed. R. Civ. P. 32(d)(3)(B) says objections to any errors or irregularities during a deposition are waived unless a timely objection is made. What to do? In this episode, Jim Garrity addresses this nuance in the rules and, as always, offers practical tips.

SHOW NOTES

Kasparov v. Ambit Texas, LLC, et al., 2017 WL 4842350 at *9, Case No. 3:16-cv-3206-G-BN (N. D. Texas Oct. 26, 2017) (“That Defendants’ counsel did not address Plaintiff’s counsel’s “form” objections at or during the deposition does not necessarily mean that Defendants have waived any waiver of the objections….”)

Defendant’s Reply Brief in Support of Motion for Summary Judgment Ebin New York, Inc. v. SIC Enterprise, Inc., et al., Case No. 1:19-cv-01017-PKC-TAM, CM/ECF Doc. 138 (E. D. N. Y. Oct. 18, 2022) (citing Kasparov, above, a position that just because defense counsel did not address defective form objections at or during the deposition, it does not mean that defense counsel “waived any waiver of the objections”)

Joint Status Report, etc., Kasparov v. Ambit Texas, LLC, et al., Case No. 3:16-cv-03206-S, CM/ECF Doc. 172 (N. D. Tex. Oct. 9, 2017) (listing, on pp. 22-25, and pp. 43-45, examples of conflicting case law on whether the specific legal basis for a form objection must be stated)

Sec. Nat. Bank of Sioux City, Iowa v. Abbott Lab'ys, 299 F.R.D. 595 (N.D. Iowa 2014), rev'd sub nom. Sec. Nat. Bank of Sioux City, IA v. Day, 800 F.3d 936 (8th Cir. 2015) (imposing sanctions for, among other things, “excessive” and “astounding” form objections”)

Animal Legal Defense Fund v. Lucas, etc., 2020 WL 7027609, Case No. 2019-40 (W. D. Penn. Nov. 30, 2020) (“By way of example only, ALDF represents that counsel for Farmers Inn made 565 objections during the deposition of Sally Zellonis, 187. during Born’s deposition, and 170 during Buzard’s deposition")

Fed. R. Civ. P. 30(c)(2) (providing that objections to any aspect of a deposition must be timely made during the deposition)

Fed. R. Civ. P. 32(d)(3)(B) (providing that objections not made to errors or irregularities during deposition are waived if the error or irregularity could have been cured and if not timely made during the deposition itself)