Handling objections in a deposition can be tricky. Some objections are subject to “use it or lose it.” Others aren’t waived even if you fail to raise them in the heat of the moment. Here’s a run down on objections during depos under California law.
Objections during the taking of an oral deposition are governed by CCP §2025.460. The big “use it or lose it” objections are those based on privilege or work product protection; these objections are waived unless they are timely made during the deposition. CCP §2025.460(a); Evid C §912(a) (privilege waived by failure to claim it when holder has legal standing and opportunity to claim it).
In addition, the “use it or lose it” rule applies to certain errors and irregularities that might be cured if promptly presented. The following are waived unless you make a specific objection to them during the deposition (CCP §2025.460(b)):
Objections to manner of recording. If you arrive at the deposition and find something amiss in the manner of its recording (e.g., testimony to be video recorded without notice or prior agreement) promptly object on the record in a brief preliminary statement before the examination begins. See CCP §2025.330(b). The deposition then proceeds subject to the objection, unless you or the deponent demand that the deposition be suspended to permit a motion for a protective order to be made under CCP §2025.470. But beware, the grounds for the motion for protective order are that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or a party, and you’ll also have to state facts in a supporting declaration that show a reasonable and good faith attempt at informal resolution of the issues in dispute. CCP §2025.420.
Objection to deposition officer. You should object to the qualifications of the deposition officer before the deposition begins, or as soon as the objection becomes known or could be discovered with reasonable diligence. Otherwise, the objection is waived. CCP §2025.320(e). The deposition officer’s financial interest in the action or status as a relative or employee of an attorney or a party are grounds for the objection. See CCP §2025.320(a). Because generally a deposition notice doesn’t identify the reporter by name, you may not be able to formulate an objection to the deposition officer until the time of the examination, or after the examination has been completed. If grounds for objection to the deposition officer are discovered at the deposition, put the objection on the record. See CCP §§2025.320(e), 2025.460(b). The testimony is then taken subject to the objection, and the court can later rule on the merits of the objection. CCP §2025.460(b). If you believe the ground for objection is so serious that the deposition shouldn’t proceed, demand that the deposition be suspended to seek a protective order. CCP §2025.460(b).
Objections to questions seeking privileged information. You always need to be alert to questions calling for information that is privileged or otherwise protected, and make a specific, timely objection to avoid any disclosure that constitutes a waiver. CCP §2025.460(a). Failure to object to the discoverability of privileged material at a deposition generally constitutes a waiver of the privilege. CCP §2025.460(a).
Objections to form of question. If a stipulation to which attorneys frequently agree is in effect, i.e., reserving all objections except to the form of the question, you have the limited task of identifying and objecting to defects in the form of the questions. Objections to the form of the question include that it is
- calls for speculation,
- asked and answered,
- calls for privileged information,
- not reasonably calculated to lead to discovery of admissible evidence,
- harassing and oppressive,
- incomplete hypothetical,
- calls for hearsay, and
- leading (if not an adverse witness).
In the pressure-filled deposition room, it is often difficult to grasp all the implications of a question, as well as to assess whether the trial judge might later rule that the matter could have been cured had an objection been timely made during the deposition. Err on the side of caution: make an objection rather than risking a waiver by saying nothing.
For everything you need to know about taking and defending depositions, including making objections, turn to CEB’s California Civil Discovery Practice, which includes a handy, laminated Checklist of Objections — a very helpful reference in the depo room!
Related CEB blog posts:
- What To Expect When You’re Expecting a Deposition: A Checklist for Preparing the Deponent
- To Depose or Not to Depose: The Advantages and Disadvantages of Taking an Oral Deposition
- Do You Really Want it Recorded?
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