As I wrote three years ago, one of the ‘basics’ as a young litigator is to learn how to take a deposition. Depositions are so commonplace in civil litigation — even the smallest of soft-tissue limited-tort car accident cases will typically have a couple — that it’s easy to forget how truly strange they are. Preparing for and taking a deposition is part psychology, part detective work, and part pure habit. The latter is what I want to focus on today.
Neither the Federal Rules of Civil Procedure nor most state rules provide much guidance on the conduct of depositions. As a result, most depositions are typically free-form. There aren’t many basic ground rules. Even critical issues like when a lawyer can demand a break in the deposition to confer with the witness remain unsettled. Indeed, most depositions start with the questioning attorney giving “instructions” to the witness that have no basis anywhere in the case law, they’re just a custom the lawyer has learned through their practice.
Which brings me to an issue I saw arise last week: when a questioning attorney gets an answer they believe wasn’t responsive to the question, what should they do?
This situation happens quite frequently, particularly when it comes to sophisticated parties and expert witnesses. These types of witnesses often come into depositions with a story they want to tell, and they are hell-bent on telling it, regardless of the questions asked.
I’ve addressed this issue before in a prior post, arguing that the key is persistence. (Sitting here today, I’d add that asking a clear, concise question is equally important.). But some lawyers respond by aggressively saying, “move to strike!”
Huh? Why? Where in the rules does it say an attorney can “move to strike” an answer they don’t like?
My view on the “move to strike” has always been the same as Rebecca Lefler’s:
I always thought it was just attorney bluffing, an attempt to intimidate the witness with a statement that makes it sound like the testimony is improper. For just about any situation I can imagine, an objection rather than a motion would be sufficient. And clearly there is no one in the room authorized to grant a motion to strike at the time it’s made.
Lefler, however, spotted an intermediate California appellate court decision that seemed to recognize the “motion.” Tellingly, though, the court didn’t bother to actually grant the supposed motion to strike, instead finding that the issue had been waived! The “motion to strike” at the deposition was useless — they would have been better off just filing a motion later in the proceedings to strike the testimony.
But Lefler’s post got me thinking about applying the Federal Rules to this scenario. As I’ve mentioned before in the context of speaking objections, Federal Rule of Civil Procedure 30(c)(1) bluntly says that depositions are not supposed to be free-form (or free-for-all), but are instead supposed to “proceed as they would at trial under the Federal Rules of Evidence…”
And there is indeed a specific Federal Rule of Evidence that covers the “motion to strike,” i.e., F.R.Evid. 103(a)(1), which provides that a “party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context …” (NITA has a little bit more on objecting to non-responsive answers at trial.)
I assume, then, that attorneys who “move to strike” at a deposition believe they are doing so as they would at trial, per F.R.Evid. 103(a)(1). Those attorneys might also feel they must make the objection, given that Fed.R.Civ.P. 30(c)(2) says “An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record…”
However, there are three problems with that analysis.
First, why those attorneys feel they must make a motion is beyond me — they can simply object. Fed.R.Civ.P. 30(c)(2) quite plainly refers to “objections.” Like Lefler says, too, there’s no judge there to rule on any “motion.” Indeed, it’s not even clear when such a “motion” would be heard.
Second, most depositions occur according to the “usual stipulations,” which obviate the need to object to anything except for the form of a question. Despite its prevalence, the “usual stipulations” have no clear legal meaning, but, by and large, attorneys can avoid any problem there by spelling out on the record that the “usual stipulations” mean “all objections are preserved for trial except for those objections to the form of a question.” The usual stipulations usually do more to protect the attorney defending the witness — because it removes the need to raise all of the typical trial testimony objections like foundation, hearsay, etc. — than the attorney asking the questions, but in this case the “usual stipulations” protect them.
Third, and to my mind most importantly, the key sentence in Fed.R.Civ.P. 30(c)(1) is:
(1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.
That is to say, even if the deposition is not under the “usual stipulations,” F.R.Evid. 103 does not apply at depositions. Unlike at trial, a party does not waive their objection to the admission or exclusion of evidence by failing to object at a deposition. This is consistent with Fed.R.Civ.P. 30(c)(2), which recognizes a key distinction between trial testimony and deposition testimony: “An objection at the time of the examination … must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection.” There is thus no reason for the questioning attorney to fear that, if they do not object to non-responsive testimony, that testimony will subsequently be admitted for purposes of dispositive motions or at trial.
So, the next time you hear an attorney “move to strike” deposition testimony, ask them what they mean — or just say their motion is denied. After all, who else are they making the motion before if not you?