Objections and Depositions

A lot of trial attorneys in Ohio believe that there is a difference between a "discovery" deposition and a "trial" deposition. This is an artificial distinction. The Ohio Rules of Civil Procedure do not make any distinction between depositions used for discovery purposes and depositions used during a trial.

Civ. R. 30 concerns depositions. It doesn't make any distinction between a "discovery" deposition or a "trial" deposition. It governs all depositions taken in a civil case, no matter what their purpose. Civ. R. 32 is the Rule that controls the use of depositions as evidence at a trial or other hearing. (Civ. R. 32 (A)). Civ. R. 32 (D) (3) covers errors and irregularities that occur during the taking of a deposition. Civ. R. 32 (D) (3) (a) and (b) read as follows:

(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties 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.

Note that objections that are waived are objections that could be "obviated, removed, or cured" if promptly presented, and objections as to the form of the questions or answers but other objections are not waived. Given the above language, it would seem that a party could still present objections when a deposition is presented at trial if the objection is one that could not have been obviated, cured, or removed if made at the time of the deposition. The upshot of this is that just because an objection is not made at the time of the taking of the deposition doesn't necessarily mean that it can't be made later. It also means that an attorney doesn't automatically "waive" any objection not made during the taking of the deposition.

One example of the above might be if an expert witness gave an opinion at a deposition that was based not on the witness's personal observations but on facts or data that had not yet been introduced into evidence. The opposing attorney at the deposition doesn't make an objection based on Evid. R. 703, assuming that the attorney propounding the evidence will have introduced the facts or data into evidence at the trial the deposition is presented at trial. If, in such a case, the underlying facts or data were not introduced prior to the presenting of the deposition, then the opposing attorney would seem to be able to object at trial. This is because arguably the basis for such an objection could not have been removed or obviated if made at the time of the taking of the deposition. There would be no way that the underlying facts or data could be introduced into evidence at the time of the taking of the deposition.

A more problematic example would be the following: a witness is testifying as to a statement made by a witness at the scene of an accident. The opposing attorney doesn't object at the time the deposition is taken, but objects at trial. The basis for the objection is hearsay. The attorney presenting the deposition argues that the statement is an excited utterance and if the objection had been made at the time of the taking of the deposition, the attorney would have introduced the foundational evidence required for the admission of such statement under Evid. R. 803 (2).

The bottom line: don't assume that just because your opponent hasn't objected at the time a deposition is taken, he or she has waived such objection, even if the deposition is one that is being taken for the purpose of introducing such deposition into evidence at trial.