It’s a common practice during a deposition for lawyers to assert legal objections to witness testimony but then allow the deposition to proceed. In fact, this practice is broadly encouraged. Depositions are wide-ranging pretrial inquiries that should, under normal circumstances, continue to their conclusion regardless of arguable legal errors that might have occurred along the way. Legal objections are resolved by the trial court at a later date.
However, there are some types of deposition irregularities where merely asserting an objection on the record is not enough to preserve the error for later review. As the plaintiff learned recently in Ratcliffe v. BRP U.S. Inc., No. 20-cv-00234 (D. Maine, Nov. 8, 2024),
the unauthorized presence of a third party in the room where a remote deposition witness is testifying is the sort of error that requires counsel to do more than merely place an objection on the record.
A Zoom Deposition, Circa 2021
This deposition, conducted remotely via Zoom, took place on April 26, 2021, during the height of the COVID-19 pandemic – a time when even experienced litigators were practicing under the “new normal” of remote depositions. The witness was a 36-year-old man who had observed the four-wheel recreational vehicle mishap that gave rise to the plaintiff’s complaint. The deposition witness suffered from a bipolar disorder; in the room during his remote testimony was his mother, who also served as her son’s legal guardian.
The witness resided more than 100 miles from the trial court so, under Rule 32(a)(4)(B) of the Federal Rules of Civil Procedure, his deposition testimony could be used at trial.
According to the deposition transcript passages provided in the court’s opinion, the plaintiff’s attorney appeared to be unaware of the mother’s off-camera presence until she spoke for the first time. The plaintiff’s attorney requested that the mother identify herself for the record. At several points during the deposition, the mother:
- advised to witness to speak up instead of nodding his head
- asked for clarification of a question put to the witness
- supplied the witness’s home address after he was unable to recall it
- advised the witness that his answer was not responsive to the question
At some point during the deposition, the plaintiff’s attorney objected to the presence of the mother. He stated:
The deposition started, and apparently, the deponent’s mother is his legal guardian, who is sitting literally right with him. And at times I have heard her help provide answers to certain questions or try to interpret his thoughts or what he means to say, and I don’t know if I’ve captured every time. I’m doing the best I can to, if I hear that, to repeat it and make sure it’s on the record, but that’s not, in my opinion, how a deposition is supposed to proceed. She’s not under oath. He’s there. Apparently, she’s his guardian, and this is going on, and I would object to the use of this deposition based on that alone.
Denying the plaintiff’s motion to prevent the use of the witness’s deposition testimony at trial, the trial court first remarked that the mother’s “contributions” to the deposition were “minor and immaterial.” Continuing, the court pointed to Rule 32 of the Federal Rules of Civil Procedure, which, the court said, provided another basis for denying the motion.
Rule 32(d)(3)(B) provides that the lawyer making an objection to an irregularity in the conduct of a deposition has an obligation to correct the error if possible:
Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:
- it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and
- it is not timely made during the deposition.
The phrase “might have been corrected at the time” doomed the plaintiff’s effort to exclude the deposition.
Counsel Should Have Done More
In the court’s view, Rule 32(d)(3)(B) obliged the plaintiff’s lawyer to do more than merely object to the presence of the witness’s mother in the room. The plaintiff’s attorney failed to request that the mother leave the room, which would have been “an obvious cure” an errors stemming from her presence, the court said. In fact, the court added, the plaintiff’s attorney asked the mother to “speak up” if she believed her son was unable to testify at any point. The court noted that when the plaintiff’s attorney requested the mother to refrain from speaking, she obliged.
“The Court concludes that Plaintiff’s counsel could have sought to correct the perceived irregularity at the time the deposition was taken, but in failing to do so, the Plaintiff has waived the right to object to the testimony’s introduction on this basis,” the court ruled.
There are a few observations that might be made regarding the court’s ruling, tempered, of course, with an acknowledgment that hindsight is 20/20. Plaintiff’s counsel remarked that he had never encountered a situation like the one presented here – a statement that was likely true for a majority of litigators in the United States in the spring of 2021.
First, a thorough knowledge of the rules governing the deposition – in the jurisdiction in which it is taken – is absolutely necessary to successfully navigate trouble spots in remote depositions. In any deposition, for that matter. This is the same advice given by the American Bar Association in Resolution 505 Best Practices for Remote Depositions, published in 2023. The ABA wrote that litigators conducting remote depositions should enter into stipulations, or obtain case-specific court orders, to address all aspects of a remote deposition that are not clearly covered by existing court rules. Many remote deposition protocols contain provisions that spell out in detail how objections should be made, preserved, and resolved. (Many of these same protocols also forbid surprise visitors and witness assistance during remote depositions.)
Second, it is difficult to imagine what more plaintiff’s attorney might have done here. He could have lodged serial objections each time the mother spoke, and another objection each time the witness answered a question with the mother in the room. He could have insisted that a camera be trained on the mother at all times. He could have insisted that the deposition stop unless and until the witness’s mother left the room. The latter course of action, however, carried its own risks in the event that the trial court later decided that the deposition should have been allowed to proceed.
Third, and finally, the plaintiff’s attorney could have challenged the witness’s competence to testify. The trial court mentioned the plaintiff’s failure to challenge the witness’s competency in its ruling. Perhaps this is a matter that might still be raised at trial – to give the jury something to consider when evaluating the reliability of his deposition testimony. The Eighth Circuit implicitly suggested this approach in Hartman v. United States, 538 F.2d 1336 (1976), where a forgetful deposition witness frequently conferred with his wife prior to answering questions. The court said that the wife’s assistance could be relevant to credibility, though it did not call for the exclusion of the entire deposition.
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