Deposition Objections
A Texas Guide for Practitioners
Depositions are perhaps the most important discovery device in civil litigation:
Depositions are the factual battleground where the vast majority of litigation actually takes place.1
One of the most difficult aspects of deposition practice- in my experience- has been understanding how and when to object to questions and testimony. I drafted a memo for my own files and publish it now for other trial attorneys just starting out. I’d also highly recommend this Baylor Law Review article for an in-depth examination of Texas deposition practice.
An attorney can object to deposition questions or testimony within the confines of Rule 199.5(e) of the Texas Rules of Civil Procedure. Generally, the court reporter records the objections, the witness will answer the questions notwithstanding the objections2, and the trial court will rule on the objection later. Objections are waived if not simultaneously stated.
Objections to questions during the oral deposition are limited to "Objection, leading" and "Objection, form." Objections to testimony during the oral deposition are limited to "Objection, nonresponsive."3
“Objection, Leading”
A leading question is “one that suggests the desired answer or puts words into the witness’s mouth to be echoed back.”4 If the questioning attorney asks a question that makes it clear what the attorney wants the answer to be, a leading objection is proper.
Leading questions are permitted on cross-examination or when the witness is hostile.5 Leading questions are generally improper on direct examination.6
“Objection, Form”
Form objections address improperly-worded questions, and encapsulate the following:
Assumes facts in dispute or not in evidence
Argumentative
Misquotes the deponent
Calls for speculation
Ambiguous or unintelligible
Compound
Too general or vague
Calls for narrative answer
Asked and answered
Misstates the record
Calls for an opinion of an unqualified witness
Lacks a foundation
Attorney attempting to testify
Harassing or oppressive
Incomplete hypothetical7
After a form objection is made, the opposing attorney may request an explanation. The objecting attorney “must give a clear and concise explanation of [the] objection[.]”8 After the explanation, the witness must usually answer the question.9
“Objection, Nonresponsive”
When a witness does not answer the question asked, an attorney may object to the testimony as nonresponsive.
Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993)
Exceptions to this general rule are described in Rule 199.5(f).
TEX. R. CIV. P. 199.5(e)
Sahualla v. Guseman Constr., LLC, No. 09-14-00342-CV, 2015 Tex. App. LEXIS 4645, at *4 (Tex. App.—Beaumont May 7, 2015, no pet.)
TEX. R. EVID 611(c)
Id.
Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 (Tex. App.—Houston [1st Dist.] 1998, no writ); St. Luke’s Episcopal Hosp. v. Garcia, 928 S.W.2d 307, 309 (Tex. App.— Houston [14th Dist.] 1996, no writ) (same); TEX. R. CIV. P. 199 cmt. 4; cf. Sec. Nat’l Bank v. Abbott Labs., 299 F.R.D. 595, 601 (N.D. Iowa 2014)
TEX. R. CIV. P. 199.5(e)
TEX. R. CIV. P. 199 cmt. 4