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January 2004


The time has come to eliminate the contemporaneous objection requirement for depositions.

From the original 1938 framing of the Federal Rules of Civil Procedure (Rules) to the present, no one has recognized that the theory behind the contemporaneous objection rule in depositions, as drawn from pre-Rules equity practice, does not match the function of depositions in our post-Rules system of open discovery. Pre-Rules depositions in the federal courts were exclusively testimony-preservation devices, and never discovery tools. The common law and statutory procedural rules for pre-Rules depositions, including the contemporaneous objection rule, reflected this use . But when the original Federal Rules of Civil Procedure converted depositions into primarily fact-discovery devices, the older procedural rules were incorporated into the new Rules, nearly wholesale, and without consideration—and there they remain.

In the last ten years, perceived problems with deposition practice have resulted in a number of modifications to the discovery rules, as well as other proposals to curb aggressive use of objections in depositions. Before 1993, in the federal civil system, the Rules did not specify the manner in which deposition objections were to be made, which led to a chorus of commentators decrying the prevalence of “speaking” and “coaching” objections. Revisions in 1993 to the Federal Rules of Civil Procedure for the first time required deposition objections to be made “concisely and in a non-argumentative and non-suggestive manner.” In 1999, the Texas state courts went so far as to limit all objections to deposition questions to two words, either “Objection, leading” or “Objection, form.”

However, all of these modifications and proposals share the pathology of the original Rules: they fail to recognize the theoretical disconnect between antiquated testimony-preservation-focused procedural rules and the now-primary use of depositions as fact-discovery devices. Thus, the proposals have focused on “discovery abuse,” rather than addressing the real problem, which is a fundamental misconception of the proper, less-adversarial role of attorneys in depositions. Rather than issue prescriptions that treat the symptoms, surgical elimination of the contemporaneous objection rule will address the disease, and finally bring deposition practice into line with the theory of open discovery upon which its modern incarnation is based.

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