Handling the Non-Responsive Deponent: Object to the Form of His Answers

All too often, attorneys find themselves deposing an evasive witness who refuses to answer even the simplest of questions.  Although such a witness may be frustrating, lawyers frequently turn to a standard tactic for dealing with evasive answers: thank the witness for his irrelevant remarks, repeat the original question, and ask the witness for a responsive answer.  Through this tactic, the deposing attorney is often able to maintain control of the deposition and signal to the witness that, although he is free to clarify or explain his responses, he still must answer the questions presented.  Routinely, however, this strategy prompts opposing counsel to object to the renewed question as "asked and answered," leading to a back-and-forth argument over whether the question was in fact "answered."  Many lawyers have heard the obstructionist speech, "If you don't like the witness's answer, then that's your problem, but I will not allow you to harass my client and force him to answer the same question again and again."  How should you, as the deposing attorney, respond to such an objection?  As it so often does, the answer lies with the rules.

The appropriate course of action, although little-known and seldom used, derives from Federal Rule of Civil Procedure 32, which governs the use of depositions in court proceedings.  Pursuant to Rule 32, certain objections are waived if they are (1) not timely made during the deposition and (2) are to "the form of a question or answer . . . or other matters that might have been corrected at that time."  Fed. R. Civ. P. 32(d)(3)(B) (emphasis added); accord Ohio Civ. R. 32(D)(III)(b) ("Errors and irregularities occurring at the oral examination . . . in the form of the questions or answers . . . and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.") (emphasis added).  Typically, attorneys read pertinent portions of Rule 32 to require objections only to the form of questions during a deposition; however, upon a closer reading of the Rule, it is evident that it requires objections to the form of the answers as well.  Further, Rule 32 not only provides that objections to the form of the answers are proper, but also that an attorney waives such objections if not timely made during a deposition.  NGM Ins. Co. v. Walker Constr. & Dev., LLC, No. 1:11-CV-146, 2012 U.S. Dist. LEXIS 177161, *7 (E.D. Tenn. Dec. 13, 2012) ("[A]ny objection based on the form of the question or answer is waived [if not made during the deposition].  This includes . . . non-responsive answer[s] . . . and witness' answers that were beyond the scope of the question."); accord Horner v. Mignerey, No. L-76-074, 1977 Ohio App. LEXIS 9469, *10 (Ohio Ct. App. Jan. 28, 1977) ("Motions to strike answers elicited from a witness by a cross examining attorney, where the objection or motion to the answers was not made at the taking of the deposition, are waived by the cross examining attorney and such objections to answers cannot be made for the first time at the trial.").

Thus, before the obstructionist attorney claims that you are harassing his client by insisting on an answer to your question, you should, and arguably must, object to the witness's nonresponsive answers.  After asserting your objection, explain to opposing counsel that you have the same right to object to the witness's answers as opposing counsel has to object to your questions.  Also, remember to make these objections on the record to avoid any issues of waiver, particularly in the event that opposing counsel makes accusations of harassment and threatens to terminate the deposition.  If opposing counsel continues to insist that your question is "asked and answered," then point out that although the question may have been "asked," it was "answered" subject to your objection only.  It is up to the trial judge, not opposing counsel, to determine whether your objection is proper.  By demonstrating a thorough knowledge of the rules to the witness and opposing counsel, you will increase your control over the deposition, allowing you to obtain the information you need to advance your client's case.