Disruptions’ Function: A Defense of (Some) Form Objections under the Federal Rules of Civil ProcedureSeton Hall Cir. Rev. (2016)
Originally seen as a sharp and efficient instrument for the discovery of truth and the sifting of facts, the effectiveness of the oral deposition authorized by Federal Rule of Civil Procedure 30 and governed by sundry other provisions, observers would later conclude, had been dulled by the Rules’ middle-age. Repeated objections, often lengthy and suggestive, had apparently rendered depositions increasingly long and unproductive, and exchanges akin to the ones excerpted throughout this piece are no longer unusual. True, many depositions smoothly transpired. Still, pesky objections of dubious need and value, their exclamation inconsistent with the collegiality implicitly favored by the Rules’ discovery provisions, seemed to muck up the efficient functioning of the Rules’ pretrial-discovery system with maddening regularity. Wholly unexpectedly, discovery had transformed litigation into “ordeal,” efficiency, justice, and promptness, the fixed stars in the Rules’ overarching cosmography, often unrealizable due to such interruptions’ apparent prevalence.
In response to this perception, Rules 26, 30, and 32 would be repeatedly redrafted. One command, however, remained mostly unchanged, the Rules’ drafters first adopting and later haphazardly refining an older classification system. Some objections were deemed too valuable for waiver to ever be appropriate. But those “relat[ing] 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” were made so if “not timely made during the deposition,” an unadulterated codification of the so-called “contemporaneous objection rule.” With time, however, one major change came. Today, objections must be “stated concisely in a nonargumentative and nonsuggestive manner” and may not include an instruction to the deponent not to answer if unnecessary “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” The contemporaneous objection rule had been borrowed from an older era, but this manner prong was newer still, crafted so as to address concerns once deemed unpersuasive. More amendments, at least partly relevant, would come in the winter of 2015.
With only these express provisions and apparent ills as touchstones, a growing cavalcade of opinions has inconsistently adjudged the permissible content of an objection to a question’s form. Many courts have insisted that the Rules, expressly and implicitly, condone the use of such phrases as "objection to form" or "objection, form" and nothing more. To them, such "simple form objections," the phrase used in this article, are alone suitable. Other jurists have demurred. Because the Rules clearly encourage and arguably compel that a proper objection divulge its precise ground, this coterie has asseverated, a simple form objection will never suffice. Instead, a "precise form objection," this article’s contrasting term, must be used, its foundation -- "asked and answered," "ambiguous," "argumentative," "compound," and more -- immediately adduced. At present, precedent evinces a loud discord over which type -- a simple or a precise form objection -- best fits with the Rules' text and design.
Delving into the Rules' language, specific context, and broader design, both before and after the amendments that became effective on December 1, 2015, this article takes a side, explicating why the Rules compel the use of precise form objections over their plainer kin.
- asked and answered,
- federal rules of civil procedure,
- rule 30,
- rule 32,
- rule 31,
- rule 26,
- rule 1,
- objection to form,
Publication DateSpring 2016
Citation InformationAmir Shachmurove, Disruptions’ Function: Defending (Some) Form Objections under the Federal Rules of Civil Procedure, 12 Seton Hall Cir. Rev. (forthcoming Spring 2016).