May 15, 2017 – Objections by opposing counsel at depositions are not a rare occurrence. While many lawyers make objections on a regular basis, a refresher of those rules might be interesting to many.
Form and Foundation Objections
True or False: Form and foundation objections are waived if not made at a deposition.
Answer: This is generally true, although with a practical caveat. Wisconsin Statutes section 804.07(3)(c) (2015-16) states:
(c) As to taking of deposition.
1. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of a deposition, unless the ground of the objection is one which may have been obviated or removed if presented at that time.
2. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, and the form of the questions or answers, and the oath or affirmation, or in the conduct of the parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the time of the deposition.
Id. (emphasis added).
Since objections to both the form of the question and foundation are objections that, if made at the time, can be cured by the questioner, the objections are waived if not made at a deposition. See also Strelecki v. Firemans Ins. Co. of Newark, 88 Wis. 2d 464, 475-76, 276 N.W.2d 794 (1979) (unlike objections to foundation, objections to hearsay cannot be cured and are not waived).
Sarah A. Zylstra, U.W. 1998, is a partner with Boardman & Clark LLP, Madison, where she practices in all types of civil litigation in both state and federal court, and occasionally makes objections at depositions.
The practical reality, however, is if the questioning attorney is going to call the deponent as a witness at trial, then the failure to make an objection at the deposition will not have much practical effect. If the questioning lawyer asks the same question of a witness on the stand that he/she asked at a deposition without objection, and opposing counsel objects at trial on grounds of foundation, the court will simply require the questioning attorney to establish the foundation for the testimony the lawyer seeks. The questioning lawyer would not be successful in arguing the objection was waived because it was not made at the deposition. However, the failure to object at a deposition has consequences if, for example, counsel submits the transcript as part of a summary judgment motion or if counsel uses a transcript at trial instead of calling a witness live. In that instance, the failure to object to form or foundation of a question will result in such objection being deemed waived.
Questions Asked for Purely Personal or Harassment Reasons
True or False: A lawyer can instruct a witness-deponent not to answer a question that is being asked purely for personal or harassment reasons and that is unconnected to any issue in the litigation.
Answer: This is likely false. The key case addressing the issue is Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). Without getting into the factual underpinnings of the case, at some point the lawyer asked the deponent whether he had ever engaged in homosexual conduct. The question had nothing to do with the causes of action being pleaded and was designed solely to harass the witness. The opposing lawyer believed the question violated the discovery rules and he instructed the witness not to answer the question.
The court ruled that the lawyer could not instruct the deponent not to answer a question when no claim of privilege was at issue. Moreover, the court held that instructing a witness not to answer a question when there was no privilege available warranted sanctions against the attorney who instructed the witness not to answer. The court went so far as to enter a formal admonishment against another attorney who joined the objection. The Seventh Circuit noted that the witness “would have been entitled to stalk out of the room” and the lawyer could have called off the deposition and applied for a protective order. Id. at 468. However, he could not instruct the witness not to answer.
While no Wisconsin case is precisely on point, a few cases suggest support for the court’s conclusion in Redwood. In Gainer v. Koewler, 200 Wis. 2d 113, 546 N.W.2d 474 (Ct. App. 1996), the court of appeals engaged in a lengthy discussion of improper and unfair deposition and trial tactics. In providing a litany of examples of improper conduct, the court noted as improper lawyers “who instruct both client and non-client witnesses not to answer during depositions. …” Id. at 123-24. While the Gainer court’s discussion is dicta only, the discussion does suggest that the Wisconsin courts would agree with the Seventh Circuit’s decision that instructing witnesses not to answer without a claim of privilege at issue is improper.
In Alt v. Cline, 215 Wis. 2d 204, 213-215, 572 N.W 2d 895 (Ct. App. 1997), the Wisconsin Court of Appeals upheld sanctions against an attorney who instructed an expert witness not to answer questions at his deposition. The issue in Alt was whether a treating physician had a privilege not to give opinion testimony when he was not retained or being compensated as an expert witness. The plaintiff wanted the treating physician to give an opinion as to whether a gush of blood in a patient who has a history of term pregnancy was abnormal. Id. at 209. The Wisconsin Supreme Court reversed the court of appeals’ imposition of sanctions, holding that experts do have a privilege not to provide uncompensated opinion testimony in certain circumstances. 224 Wis. 2d 72, 89-90, 589 N.W.2d 21 (1999). While the court of appeals’ decision was ultimately reversed, it is instructive of how the court analyzes the issue of counsel instructing a witness not to answer.
Deposition objections that can be cured by the questioning lawyer need to be made at the time of the deposition or else those objections are waived. That would include objections to the form of the question and foundation, but not hearsay. In addition, lawyers should use care about instructing a witness not to answer a question at a deposition unless a claim of privilege is at issue.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.