What You Might Have Forgotten About Deposition Objections in New Jersey?
In litigation, the customary way of doing things often becomes the precedent for doing them, even when there is a procedural rule governing those actions that is inconsistent with, if not contradictory to, the custom. This is especially true for aspects of litigation like depositions that are generally outside of judges’ lines of sight, unless disputes arise.
Sometimes, relying on a custom that is inconsistent with a procedural rule can lead to a “no harm, no foul” situation. But that won’t always be the case, and can be especially damaging to a client’s interests when the foul might not be called until later in the litigation when the stakes are higher.
I have noticed during recent depositions that other counsel in the room seemed to have a loose grasp on New Jersey Rule of Court 4:14-3 regarding depositions, particularly objections. Perhaps that loose grasp came about by incorporating longstanding deposition practices employed by their mentors and former colleagues. Or, perhaps it was caused by a simple refusal to abide by a rule the attorneys knew well.
Whatever the reason, that loose grasp could come back to haunt those attorneys’ clients later in their matters. For that reason, I thought an overview of Rule 4:14-3 could be a helpful refresher for those attorneys whose deposition practice has strayed—perhaps unknowingly—from the letter of the rule.
Rule 4:14-3(c) permits four bases for objections
Contrary to the bases for objections that many attorneys believe are available to them, Rule 4:14-3(c) provides only four: “those addressed to the form of a question or to assert a privilege, a right to confidentiality or a limitation pursuant to a previously entered court order.” However, the rule preserves the right to object on other grounds, which “may be asserted at the time the deposition testimony is proffered at trial.”
If attorneys complied with Rule 4:14-3(c) more often, they might see their depositions end sooner. Under the rule, there is no reason to make objections outside the four listed. While many of us prefer a “belt and suspenders” approach to anything related to our clients’ matters, the New Jersey bar and the witnesses being examined during depositions would both be well-served by attorneys complying with Rule 4:14-3(c) and limiting their objections to those permitted by it.
Objecting to form? You’ll need to explain why
Rule 4:14-3(c) requires that “objection[s] to the form of a question shall include a statement by the objector as to why the form is objectionable so as to allow the interrogator to amend the question.” Thus, the rapid fire “Objection to form!” barrage that objecting attorneys often unleash during a line of questioning that’s particularly heated is improper. They should explain each objection to form. Few attorneys do.
This is an aspect of Rule 4:14-3(c) that can hurt a client’s position down the road. If an attorney objects to the form of a question but does not provide a reason the form is objectionable, they risk waiving the objection. While there may be limited instances where a waived objection to form could be problematic, the waiver could be easily prevented by the objecting attorney providing the grounds for their objection to form.
“Speaking objections” are prohibited
According to Black’s Law Dictionary, a speaking objection is “an objection that contains more information (often in the form of argument) than needed by the judge to sustain or overrule it.” A classic formulation is, “Objection. You keep asking this question in multiple ways. As my client already told you, they had their eyes on the road, both hands on the steering wheel, and were proceeding through the intersection with the right of way.”
Many jurisdictions have rules prohibiting attorneys from climbing on their soapboxes while objecting during a deposition. New Jersey is no exception. Rule 4:14-3(c) prohibits objections that are “expressed in language that suggests an answer to the deponent.” The above example objection would be prohibited by the rule. Additionally, no objection would be permitted because the appropriate objection, “asked and answered,” is not an objection to form, so it would have been preserved.
There are three situations in which a deponent need not answer
Under Rule 4:14-3(c), there are only three situations in which a deponent may choose not to answer a question. These three situations are narrow but match the three bases for objections besides objecting to form: asserting “privilege, a right to confidentiality or a limitation pursuant to a previously entered court order.” Outside of these instances, an attorney cannot instruct a witness to not answer a question.
Attorney-witness consultations are prohibited once a deposition begins
“Once the deponent has been sworn,” Rule 4:14-3(f) prohibits “communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right to confidentiality or a limitation pursuant to a previously entered court order.”
Though the “while testimony is being taken” language may suggest that this prohibition only applies when a witness is being examined, the “once the deponent has been sworn” language suggests this prohibition lasts until a deposition is adjourned, which would cover conversations during short breaks or a lunch break. The language of the rule suggests all communications are prohibited, but a reasonable interpretation and application of this rule suggests communications unrelated to the deposition would be permitted.
This rule is likely violated (knowingly or unknowingly) many times a day in depositions throughout New Jersey given clients’ penchant for asking their attorneys questions about their deposition during a break and their attorneys responding, even cursorily. However, the rule says what it says. Thus, attorneys should remind their clients of the rule’s prohibition on conversations regarding the substance of their deposition until it has been adjourned and should prepare them accordingly for the inability for them to discuss the substance of their deposition.
Rule 4:14-4 allows attorneys to take their deposition dispute to the judge
Though one would hope attorneys locked in a deposition dispute could resolve it on their own, there may be times where they must take it to the judge. Rule 4:14-4 allows a judge to halt a deposition or limit its scope and manner, “upon a showing that the examination or any part thereof is being conducted or defended [i] in bad faith or [ii] in such manner as unreasonably to annoy, embarrass or oppress the deponent or party, or [iii] in violation of R. 4:14-3(c) or (f).” The aggrieved party could seek the court’s intervention “on formal motion or telephone application.”
When an aggrieved party does so, the rule requires the deposition to be suspended “for the time necessary to make a motion or telephone application for an order.” Additionally, Rule 4:23-1(c)’s provisions regarding the award of expenses and attorneys’ fees to the successful party, whether that be the moving or the opposing party, apply. Where a motion is granted in part and denied in part, a court may apportion the expenses and fees accordingly.
Brushing up on New Jersey’s foundational deposition rules of procedure
There is no situation in which an attorney’s deep understanding of the rules of procedure will harm them or their client’s position. During depositions, knowing what Rules 4:14-3 and 4:14-4 say, no matter what customary practice opposing counsel is relying on, will put you in a better position to successfully take or defend a deposition and, hopefully, ultimately resolve your client’s matter most favorably to them.
Scott A. Telson is a partner at Lombardi & Lombardi, P.A., a leading New Jersey personal injury, workers’ compensation, and employment law firm effectively representing the legal needs of its clients since 1975. He can be reached at scottt@lombardiandlombardi.com.
*Disclaimer: Reprinted with permission from the August 14, 2024, edition of the New Jersey Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited; contact 877-257-3382 or reprints@alm.com.
