Question 1

I. SCOPE OF DISCOVERY

Accepted Answer

Depositions upon oral examination are just one method by which parties may obtain discovery. Fed.R.Civ.P. 30, 31; Fla.R.Civ.P. 1.280 (a).
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the litigation or to any claim or defense of any party, “including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter”. Fed.R.Civ.P. 26(b)(1); Fla.R.Civ.P. 1.280(b)(1). The fact that the information sought will not be admissible at trial does not render the information undiscoverable, as long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence, is not privileged, and is relevant to the subject matter of litigation. Fed.R.Civ.P. 26(b)(1); Fla.R.Civ.P. 1.280(b)(1); See generally, Capco Properties, LLC. v. Monterey Gardens of Pinecrest Condominium, 982 So.2d 1211 (3rd DCA 2008); Amente v. Newman, 653 So.2d 1030 (1995) (holding “a party may be permitted to discover relevant evidence that would be inadmissible at trial, so long as it may lead to the discovery of admissible evidence.”); Morton Plant Hospital Ass’n, Inc. v. Shahbas, 960 So.2d 820 (2nd DCA 2007) (discovery not warranted if requested material is irrelevant to a pending claim or defense and will not lead to discovery of admissible information); Simons v. Jorg, 384 So.2d 1362 (2nd DCA 1980); Rollins Burdick Hunter of New York, Inc. v. Euroclassics Limited, Inc., 502 So.2d 959 (3rd DCA 1987); Parker v. Parker, 182 So.2d 498 (4th DCA 1966); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978); Murray Van & Storage, Inc. v. Murray, 343 So.2d 61 (5th DCA 1977).
A party may obtain discovery of documents and tangible things otherwise discoverable as above, even if such items were prepared for trial or in anticipation of litigation by another party, but only upon a showing that the party seeking the items has substantial need for the materials in the preparation of its case and is unable to obtain the substantial equivalent of the materials by other means without undue hardship and “they are otherwise discoverable under Rule 26(b)(1)”. Fed.R.Civ.P. 26(b)(3); Fla.R.Civ.P. 1.280(b)(3); Fla. East Coast Railway L.L.C. v. Jones, 847 So.2d 1118 (1st DCA 2003). Winn Dixie Stores, Inc. v. Belcher, 144 So.2d 863 (2nd DCA 1962) (placing the initial burden of establishing the existence of a recognized privilege on the party opposing discovery and holding that a conversation between a store manager and a store employee regarding the incident is discoverable unless the store satisfies its burden of establishing that the information obtained during the conversation formed a part of the written incident report filed by the store).
Although reports or statements made in anticipation of litigation may be considered non-discoverable work product, a party is entitled to learn of the existence of any such reports or statements, their location, and the identity of the persons who made them. Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855 (2nd DCA 1997). Such reports or statements are discoverable if the party seeking them establishes the burden outlined above for obtaining materials prepared in anticipation of litigation.
When a party refuses to provide information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party must make the claim expressly and must describe the nature of the information sought to be protected in such a manner that, without revealing privileged or protected information, will enable third parties to assess the applicability of the privilege or protection. Fed.R.Civ.P. 26(b)(5); Fla.R.Civ.P. 1.280(b)(5); Morton Plant Hospital Ass’n Inc. v. Shahbas, 960 So.2d 820 (2nd DCA 2007); Gosman v. Luzinski, 937 So.2d 293 (4th DCA 2006); Nationwide Mutual Fire Insurance Co. v. Hess, 814 So.2d 1240 (5th DCA 2002). This requirement is intended “to identify materials which might be subject to a privilege or work product protection so that a court can rule on the ‘applicability of the privilege or protection’ prior to trial”. Kaye Scholer LLP v. Zalis, 878 So.2d 447 (3rd DCA 2004), quoting General Motors Corp. v. McGee, 837 So.2d 1010 (4th DCA 2003).

Question 2

II. CONDUCTING THE DEPOSITION

Accepted Answer

A. In General

Under Federal Rule 30(d)(1), the deposition of any one witness is limited to one day of seven (7) hours, unless a longer time is permitted by the court or by stipulation of the parties. Florida does not have a similar limitation.
Examination and cross-examination of witnesses in a deposition may proceed as permitted at trial. Fed.R.Civ.P. 30(c)(1); Fla.R.Civ.P. 1.310(c). “The underlying purpose of a deposition is to find out what a witness saw, heard, or did – what the witness thinks”. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). It is intended to aid the parties in learning the facts and finding the truth. Improper conduct that frustrates these goals is strongly disfavored by the courts.
During the deposition, the deponent cannot confer with counsel about the questions being asked or the answers to be provided. Upon the deposition beginning, the lawyer who is deposing the witness is allowed to do so without interruption by the counsel of that deponent. “Conferences between witness and lawyer are prohibited both during the deposition and during recesses”. This is to prevent a lawyer or witness who “finds that a deposition is going in an undesired or unanticipated direction” from insisting “on a short recess to discuss the unanticipated yet desired answer, thereby circumventing the prohibition on private conferences”. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).
 If the examining lawyer presents documents during the deposition, the deponent and counsel are not entitled to discuss the documents privately before the witness answers questions about them. Collins v. Int’l Dairy Queen, Inc. and American Dairy Queen Corp., 1998 WL 293314 (M.D. Ga. 1998). However, if a deposition continues into the following day, it may be permissible for the witness to confer with counsel during the evening recess in order to prepare for the following day. In re PSE&G Shareholder Litigation, 726 A.2d 994 (N.J. Super. Ch. 1998).
 Defense counsel may ask plaintiff in deposition when she hired attorney, but can not ask if attorney referred her to particular physician. Burt v. GEICO, 603 So.2d 125 (2nd DCA 1992).

B. Instructing the Deponent Not to Answer
1. There are only three reasons for which a lawyer may instruct a witness not to answer a deposition question: (1) to preserve a privilege, (2) to enforce limitation on evidence discussed by the court, or (3) to present a motion to terminate or limit the deposition (each discussed separately below). Fed.R.Civ.P. 30(c)(2); Fla.R.Civ.P. 1.310(c. In the absence of one of the above listed scenarios, such an instruction would be “without legal justification”. Smith v. Gardy, 569 So.2d 504 (4th DCA 1990), decided before the 1996 amendment to Rule 1.310(c))(“Nowhere in the Florida Rules of Civil Procedure is there a provision that states that an attorney may instruct a witness not to answer a question.”). The instruction not to answer must be based on “a reasonable, good faith objection to the question” premised on one of the above grounds. Collins v. Int’l Dairy Queen, Inc. and American Dairy Queen Corp., 1998 WL 293314 (M.D. Ga. 1998).

To preserve a privilege &#8211; “A party asserting a privilege … has the burden of demonstrating that the privilege is applicable.” Fondren v. Republic American Life Ins. Co., 190 F.R.D. 597 (N.D. Okla. 1999); Eight Hundred, Inc. v. Florida Dept. of Revenue, 837 So.2d 574 (1st DCA 2003); First Union Nat’l Bank v. Turney, 824 So.2d 172 (1st DCA 2001). Party may not simply claim a privilege anytime it wishes to avoid answering a question; party must state what privilege is being asserted, and must demonstrate that privilege is available in the particular case and in the jurisdiction, and that the privilege protects the information being sought. For example, although Texas recognizes a “party communication privilege,” Oklahoma does not, so if Oklahoma law applies to the case, such a privilege is inapplicable and cannot properly be asserted in a deposition taken in that case. Fondren v. Republic American Life Ins. Co., 190 F.R.D. 597 (N.D. Okla. 1999).
To enforce a limitation imposed by the Court -Any such limitation will of course be defined by the court. If a party reasonably believes that a question seeks to elicit information that the court has previously ruled is not discoverable, an instruction to the witness not to answer is appropriate. However, if the court later determines that the instruction not to answer was unjustified, then sanctions may be imposed as outlined below in Section III. 
To bring a motion to terminate or limit the deposition &#8211; The rules do “not permit an attorney to instruct a witness not to answer repetitious, harassing or argumentative deposition questions” except to present such a motion. Fondren v. Republic American Life Ins. Co., 190 F.R.D. 597 (N.D. Okla. 1999); Smith v. Gardy, 569 So.2d 504 (4th DCA 1990)(Deposition may be suspended pending ruling from court if objecting attorney has valid belief that answer to clearly objectionable question would be so damaging that even if not permitted at trial, information revealed would be harmful beyond repair.). If lawyer or deponent engages in annoying, harassing, or oppressive behavior, the opposing lawyer should politely ask the offending party to cease such conduct. If that fails to end the unacceptable behavior, the opposing lawyer should terminate the deposition and bring the appropriate motion before the court. The practice of videotaping the deposition goes a long way in preventing or minimizing such conduct, as people are generally much better behaved in front of a camera.

C. Objections
1. Any objections to the competency of a witness or to the competency, relevancy or materiality of testimony are not waived by failure to make them during the deposition, unless the ground for the objection might have been removed if raised. Fed.R.Civ.P. 32(d)(3)(A); Fla.R.Civ.P. 1.330(d)(3)(A. “Since most objections, such as those grounded on relevance, materiality, and admissibility, are preserved for trial, they need not be made” and “ordinarily should not be made during the course of depositions.” Collins, supra. 
2. However, any objections to the manner of taking the deposition, to the form of the questions or answers, to the oath or affirmation, to the conduct of a party, or to any other matter, which might have been cured or removed if raised at the time, are waived unless a timely objection is made during the deposition. Fed.R.Civ.P. 32(d)(3)(B); Fla.R.Civ.P. 1.330(d)(3)(B). All objections during a deposition to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, shall be noted by the officer taking the deposition, but the deposition shall continue and the testimony shall be taken subject to the objections. Fed.R.Civ.P. 30(c)(2); Fla.R.Civ.P. 1.310(c). As to the actual questions asked during a deposition, essentially all objections are preserved, unless they relate to the form of the question or the foundation for the witness’s answer.
3. Any objection made during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. Fed.R.Civ.P. 30(c)(2); Fla.R.Civ.P. 1.310(C). “For those objections which the Rules provide are or may be waived if not made immediately, such objections should be stated as briefly as possible”. Collins, supra. In the circumstance that a further explanation is necessary, the explanation should be succinct and not offer a suggestive answer to the witness or interfere with the questioning in any way. Id. 
4. In other words, speaking objections are strictly prohibited at deposition, just as they are at trial. The primary purpose of depositions and discovery, in general, is to find the truth. Frequent and suggestive objections frustrate this purpose because the testimony of the witness becomes colored by the objecting lawyer and alters the truth or detracts from the accuracy of the facts. For additional authority regarding deposition objections, see Robert B. Sykes, Abusive Deposition Tactics, Trial Magazine, Sept. 1999, and Chapter 4 of the 2000 Handbook on Discovery Practice, prepared by the Joint Committee of The Trial Lawyers Section of The Florida Bar and Conferences of Circuit and County Court Judges.
D. Improper Objections
1. Instructions by counsel defending the deposition to the deponent to answer only “if you recall” or “if you remember” or “if you know” are improper. Such interjections are suggestive, unjustified and prohibited. Sinclair v. Kmart Corp., 1996 WL 748038 (D. Kan. 1996) (based on this conduct, the court allowed the witness to be deposed again). Similarly, “don’t guess” or “don’t speculate” are improper objections, as a witness’s guess or speculation may lead to the discovery of admissible evidence, and such an objection is usually intended to coach the witness or to suggest the manner in which a question should be answered. For example, after such a comment is made by counsel, the witness will typically answer “I don’t know” or “I don’t remember.”
2. “I don’t understand the question” or “the witness doesn’t understand the question” are improper objections. If a question appears confusing, misleading or ambiguous, counsel or the deponent should simply ask the examining attorney to rephrase or clarify the question. Counsel should not interject his or her own interpretation or elaborate on the reasons for the objection. Collins, supra. If the deponent requests clarification, it should be provided by the examining attorney, not the deponent’s own lawyer. This objection is frequently abused, as it usually says to the deponent “don’t answer the question as phrased.” Asking clear questions in manner that is easy to understand will help avoid this type of objection.
3. “The item speaks for itself” is not a valid objection, as the examining attorney is entitled to ask the deponent to interpret an item, explain it, and describe its meaning and content, as long as the witness has the knowledge to do so. Collins, supra. 
4. “Calls for a legal conclusion” is not a valid objection, as the examining attorney is entitled to ask the witness his or her own conclusions or opinions, even if they will not be admissible at trial. Collins, supra.
5. “Calls for a narrative” is an improper objection, as it is completely acceptable for a question to ask for a narrative response. However, if the answer strays too far from the original question, a “non-responsive” objection may be appropriate and necessary to preserve the objection, as such an objection could cure the problem during the deposition. 
6. “Asked and answered” is an improper objection, unless the questioning is truly so repetitive and redundant that it is abusive or harassing, in which case a motion for a protective order may be appropriate. There is nothing wrong with asking a witness the same question more than once or asking it in more than one way. In fact, this is often necessary to obtain a complete answer or to effectively deal with evasive answers. 
7. “Mischaracterization of testimony” is usually an improper objection, as it is often a subtle attempt to coach the witness by suggesting that an answer to the question might conflict with prior testimony given by the witness. However, this objection can be valid if the examining lawyer is clearly misstating the witness’s prior testimony.
8. “Assumes facts not in evidence” is usually an improper objection. In a deposition, the examining lawyer is trying to obtain information not yet known, and will frequently have to make certain assumptions when asking questions. It does not matter if the assumed facts have not yet been established or supported by evidence. If the objecting party persists with this objection, rephrasing the question as a hypothetical should be sufficient to overcome the objection. 
E. Proper Objections
1. It is proper to object to the form of the question, and such an objection must be raised at the time the question is asked or it is waived. If such an objection is necessary, counsel should simply state “I object to the form of the question.” See Damaj v. Farmers Insurance Company, Inc., 164 F.R.D. 559 (N.D. Okla. 1995). Further explanation is unnecessary and improper.
2. “Leading question” is a valid objection because it relates to the form of the question, but the objection is only valid when leading questions are asked of a party’s own witness. Leading questions may be used just as at trial, when questioning adverse or hospital witnesses, but not when questioning a party’s own witness. 
3. “Compound question” is a valid objection because it relates to the form of the question, and the objection is waived if not made when the question is asked. Of course, the examining lawyer can cure such an objection by simply rephrasing the question in a simplified manner. 
4. “Vague” or “ambiguous” are usually valid objection, relating to the form of the question, but these objections are frequently abused by lawyers seeking to disrupt the deposition. The objections are valid when a question uses a term that is unfamiliar or undefined, or susceptible to more than one meaning or interpretation. These objections are waived if not made when the question is asked. 
5. Additionally, if a deponent who is not a party to the action brings his or her own lawyer to the deposition, that lawyer should not be permitted to make objections, unless necessary for any of the three reasons outlined above for which it is permissible to instruct a witness not to answer. This is because testimony at a deposition is to proceed just as at trial, and a lawyer for a non-party witness would not be permitted to make objections at trial. Furthermore, allowing two lawyers to make objections during a deposition would confuse the witness and impede the deposition.

Question 3

IV. REMEDIES AND SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY RULES

Accepted Answer

A. If a party feels it is necessary to protect itself, a witness or a deponent from annoyance, embarrassment, oppression, or undue burden or expense, it may file a motion for a protective order seeking to limit discovery. Fed.R.Civ.P. 26(c)(1); Fla.R.Civ.P. 1.280(c). If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred as a result. Fed.R.Civ.P. 30(d)(2). If a party can show that a deposition is being conducted in bad faith, or in such a manner as to unreasonably annoy, embarrass or oppress the deponent or party, the court may order that the deposition be terminated or that the deposition be taken subject to certain limitations. Fed.R.Civ.P. 30(d)(3)(A)-(B); Fla.R.Civ.P. 1.310(d). The Florida rules also allow such a remedy if the court finds that a lawyer is objecting or instructing a deponent not to answer in violation of Rule 1.310(c). Fla.R.Civ.P. 1.310(d). Upon demand by a party or the deponent, the deposition must be suspended for the time necessary to bring such a motion before the court. Fed.R.Civ.P. 30(d)(3)(A); Fla.R.Civ.P. 1.310(d). Smith v. Gardy, 569 So.2d 504 (4th DCA 1990).
B. If a deponent fails to answer a question that is proper and permissible, the party taking the deposition may move for an order compelling an answer. Fed.R.Civ.P. 37(a)(3)(B); Fla.R.Civ.P. 1.380(a)(2). When taking a deposition, the party asking the question may complete or adjourn the deposition before making such a motion. Fed.R.Civ.P. 37(a)(3)(C); Fla.R.Civ.P. 1.380(a)(2). An evasive or incomplete answer will be treated the same as the failure to answer. Fed.R.Civ.P. (a)(4); Fla.R.Civ.P. 1.380(a)(3)).
D. If the court grants a motion to compel, it must award costs and attorney’s fees to the moving party, to be paid by the party or deponent whose conduct necessitated the motion, unless the court finds that the opposition to the motion was justified or that other circumstances make such an award unjust. Fed.R.Civ.P. 37(a)(5)(A); Fla.R.Civ.P. 1.380(a)(4). On the other hand, if the court denies a motion to compel, it must award costs and attorney’s fees to the party opposing the motion, to be paid by the party or deponent who brought the motion, unless the court finds that the motion was justified or that other circumstances make such an award unjust. Fed.R.Civ.P. 37(a)(5)(B); Fla.R.Civ.P. 1.380(a)(4). If the motion is granted in part and denied in part, it may apportion costs and fees in a just manner. Fed.R.Civ.P. 37(a)(5)(C); Fla.R.Civ.P. 1.380(a)(4).

Question 4

V. DISCOVERY POLICIES AND PRINCIPLES

Accepted Answer

A. “The Federal Rules of Civil Procedure place the burden of seeking court protection squarely on the party resisting discovery.” Fondren, supra at 600. The same court stated that “liberal discovery [is] afforded under Rule 26(b)(1).” Fondren at 601. “The Federal Rules of Civil Procedure provide clear guidance or the appropriate conduct of depositions. The rules are understandable without need of judicial gloss. Adherence to those Rules will prevent obstructionist tactics from occurring during depositions.” Fondren at 602.
B. “[D]epositions are the factual background where the vast majority of litigation actually takes place.” Collins, supra.
Depositions should be limited to what they are intended to be under the Federal Rules of Civil Procedure, question-and-answer sessions between a lawyer and a witness aimed at uncovering the facts in a lawsuit. When a depositions becomes something other than that, due to strategic interruptions, suggestions or cautions to the witness through speaking objections, arguments of counsel, instructions to a witness not to answer, a question when there is no valid basis for refusal to answer, and the like, the deposition not only becomes unnecessarily long but ceases to serve the overriding goal of the Federal Rules of Civil Procedure, to reach the truth. See, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Penn. 1993); Odone v. Croda International PLC, 170 F.R.D. 66 (D.D.C. 1997); Damaj v. Farmers Insurance Co., Inc., 164 F.R.D. 559 (N.D. Okl. 1995). The rules are designed to ensure that the testimony taken during the deposition is completely that of the deponent, rather than a version of the testimony which has been edited or glossed by the deponent’s lawyer. Hall, supra.
Id. The Court further stated that 
It is incumbent upon counsel for both sides, as officers of the court, to refrain from conduct which their lawyering skills tell them crosses over or may cross over the line between good lawyering and proper representation of their client’s interests, and deliberate or merely overzealous interference in depositions which abuses the rules governing the deposition process and the goal of that process to allow opposing counsel in a reasonable manner to determine the facts of the case from the witnesses having knowledge of those facts.
Id.
C. The Court in Damaj, supra, expresses strongly its concern that most cases settle out of court and that those settlements are based on the facts uncovered in discovery. The discovery process, therefore, should aim to uncover accurate facts and find the truth, so that settlements are fair and are based on accurate information available to all parties. 
D. The Federal Rules and the rules of most states allow for liberal discovery and they discourage obstructionist tactics. There are few things courts like less than having to settle discovery disputes. Following both the letter and the spirit of the rules will help parties conduct effective depositions without the necessity of court intervention. It also has the added advantage of saving the courts, witnesses, parties, and lawyers valuable time and money.

Question 5

VI. USE OF DEPOSITIONS

Accepted Answer

A. Discovery depositions may not be used as substantive evidence in a criminal trial.State v. Green, 667 So.2d 756 (Fla. 1995). 
B. Deposition of opposing party’s corporate representative may be admitted as substantive evidence at trial. Demoura v. Travelers, 46 FLW D2343 (5th DCA 2021)

Question 6

VI. ADDITIONAL RESOURCES

Accepted Answer

2021 Handbook on Discovery Practice, prepared by the Joint Committee of the Trial Lawyers Section of The Florida Bar and Conference of Circuit and County Court Judges 
Florida Civil Practice Before Trial Handbook, published by the Florida Bar.
Middle District of Florida Civil Discovery Handbook

Depositions in Florida

Quick Links

Contact Us

Practice Areas

Disclaimer

This page is protected.

Other Outlines

Get a FREE
Case Evaluation

Depositions in Florida

Quick Links

This page is protected.

Other Outlines

Get a FREE Case Evaluation

Get a FREE
Case Evaluation