Friday, February 18, 2005

Contemporaneous objection rule in depositions -- still a good idea?

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

E. Stewart Moritz, The Lawyer Doth Protest Too Much Methinks: Reconsidering the Contemporaneous Objection Requirement in Depositions, 72 U. Cin. L. Rev. 1353, 1353 (2004), available on LexisNexis , Westlaw, and Hein Online.

(I always like it when a law review article gets directly to the point.)

Fed. R. Civ. P. 32(d)(3)(B) (which is the same as Washington's CR 32(d)(3)(B)) provides that parties waive any errors in the manner of taking a deposition, the form of the questions or answers, the conduct of the parties, and so on, unless they object at the time.

The author traces the history of deposition rules, concluding that the contemporaneous objection rule is a vestige of pre-Rules common law. It is more suited, he says, to "the use of depositions as a testimony-preservation, rather than a fact-discovery device" (p. 1403) -- which is the more common modern use of depositions.

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