If you have been to a deposition, you have heard both improper questions and improper objections. Rarely, however, do court opinions or rules focus on whether counsel’s behavior violated the Rules of Professional Conduct. I attribute this to the issues that may be pending rather than a lack of concern about the ethics of objecting at a deposition. But do not mistake the lack of published ethics cases for a lack of ethics rules governing conduct at deposition.

In Maryland, we have several sources of authority that govern conduct at deposition. We have, of course, the various Maryland Rules (Md. Rules 2-404 to 2-419) and myriad cases that address the scope of discovery, privilege issues and more. We also have several Maryland Attorney’s Rules of Professional Conduct which may be implicated when counsel behaves poorly during a deposition:  Md. Rules 19-301.1 (Competence), 19-303.1 (Meritorious Claims and Defenses), 19-303.2 (Expediting Litigation), 19-303.4 (Fairness to Opposing Party and Attorney), 19-304.1-303.4 (Rules on Transactions with Persons other than Clients) and 19-308.4(c) and (d).

In addition to the rules, the Maryland Discovery guidelines No. 9 and 10 are instructive. In guideline No. 10, attorneys are, for example, encouraged to make form objections and to clarify why when asked. Similarly, I read guideline No. 9(a) as encouraging counsel to object to a question which misstates or mischaracterizes the witness’s previous answer. And I read No. 9 (c) as encouraging counsel to object if an attorney continues to ask the same or a substantially identical question so long as the previous answer was complete and not evasive. But, while objections are proper, an objection should not suggest an answer. Moreover, counsel should not initiate a private conference with a deponent during the actual taking of a deposition, except for the purpose of determining a claim of privilege. And we all know we should not instruct a client not to answer a question at a deposition except in limited circumstances like privilege. See Guideline 9(g).

Another issue that has arisen recently in cases is whether counsel can discuss testimony with a witness. Depositions are like a trial. Under Guideline 9(i), no one should discuss with the deponent the substance of the prior testimony given by the deponent during the deposition. Rather, discussion during breaks should focus on something other than the witness’s prior testimony unless there is a question of whether to assert a privilege.

While many attorneys are familiar with these general rules, far too few are familiar with the details of certain objections, and how they are viewed by various courts. As part of a matter I am handling, I was provided with a Memorandum Opinion from a Special Discovery Master in Delaware an insurance coverage case which I found quite useful: Mine Safety Appliances Company v. AIU Insurance Company, et al. C.A. No. N10C-07-241 MMJ (Superior Ct. of Delaware in and for New Castle County (Mar. 10, 2014). The opinion addresses 270 objections made by counsel defending the deposition which the Master concluded impeded the examination of the witness. Other interesting parts of the ruling include (1) a finding of improper speaking objections, (2) a finding that counsel improperly used objections to answer for the witness, (3) overruling objections that “the document speaks for itself” and “calls for a legal conclusion,” and (4) that questions seeking the factual basis for legal positions are proper. On the other hand, the master sustained objections to questions that sought expert opinions and pure questions of law.

I enjoyed the master’s discussion of two of my all-time favorites: “Can you clarify the question?” and “if you know.” Most witnesses agree to ask for clarification, and every question is about what the witness knows. The master concluded these statements by counsel were designed to give a clue to the witness. Because a trial did not proceed in such a fashion, neither should a deposition.

This article originally appeared in The Daily Record on January 4, 2024.