When considering objections in discovery depositions in civil lawsuit cases in Delaware, it’s helpful to break down the different types of objections and their purpose. This guide covers four main categories of objections: privilege objections, other substantive objections, form objections, and speaking objections.

What Are Discovery Objections in Civil Cases?

Privilege Objection

In a deposition, a privilege objection is used to prevent a witness from answering a question because the information sought is legally protected. When an attorney makes a privilege objection, they will typically instruct the witness not to answer the question. The goal is to stop the testimony entirely.

Examples of legal privileges that can be asserted include:

  • Fifth Amendment: privilege against self-incrimination.
  • Attorney-Client Privilege: protects confidential communications between a client and their lawyer.
  • Clergy or “priest-penitent” Privilege:  which protects communications made to a religious figure.
  • Spousal Privilege: protecting certain communications between spouses.
  • Physician-patient Privilege and Psychologist-Psychiatrist Privilege: which protect a patient’s medical and mental health information. It’s worth noting that in personal injury cases, these privileges are often waived when a plaintiff puts their physical or emotional health at issue.

Other Substantive Objections: Preserving for Trial

Sometimes, an attorney will object to a question but will still allow the witness to answer. These are often called “for the record” objections because their primary purpose is to preserve the objection for a later stage, like a trial. The goal isn’t to stop the testimony but to make a record of the objection in case the testimony is later used in court.

Examples of these objections include:

  • Hearsay, which is an out-of-court statement offered in court to prove the truth of the matter asserted.
  • Relevance, when the question isn’t related to the case.
  • Improper character evidence, such as prior crimes under Delaware Rule of Evidence 404(b).
  • Improper expert opinion from a non-expert, or “lay,” witness.
  • Lack of adequate foundation, when the questioning attorney hasn’t established the witness has the necessary knowledge to answer.
  • Lack of knowledge of the subject matter.

Form Objections: Maintaining a Clear Record

The purpose of a form objection is to maintain a clear and accurate transcript of the testimony. By making a form objection, the attorney is alerting the questioning attorney to a defect in the question itself. Like other substantive objections, an attorney will typically object “for the record” and then let the witness answer. A key difference with form objections is that the questioning attorney has the right to know what’s wrong with the question so they can fix it. So if you object to form, be prepared for the question, “What was wrong with that?”

Common examples of form objections include:

  • Compound questions, which are multiple questions asked as one.
  • Leading questions, which suggest the desired answer.
  • Vague or ambiguous questions.
  • Repetitive questions that have already been asked and answered.
  • Questions that call for speculation.
  • Argumentative questions designed to elicit an emotional response rather than factual testimony.
  • Misleading questions that misstate previous testimony.
  • Questions about irrelevant matters that aren’t likely to lead to the discovery of admissible evidence.

Speaking Objections: What to Avoid

Finally, it’s important to understand speaking objections. These aren’t true objections but are instead attempts by an attorney to influence or coach the witness’s testimony. A speaking objection involves an attorney making statements on the record that aren’t a proper objection and are meant to coach or prompt the witness.

An attorney should never be making statements to a deponent about the subject matter of their testimony while they are present. If you need to have a discussion about the testimony, you should ask the witness to temporarily leave the room so they are out of earshot. If opposing counsel starts making speaking objections, you should express your discomfort with the process, ask for the witness to be excused, and make a clear record of your concerns.

In Delaware civil litigation, understanding the proper use of objections is a fundamental skill for any attorney. Knowing when to object, what kind of objection to make, and when to let a witness answer can be crucial to the outcome of a case.

Contact Our Firm Today For Assistance

At Schwartz & Schwartz, Attorneys at Law, our experienced team is well-versed in Delaware’s discovery deposition procedures and common objections. We can help you understand your rights and ensure that your case proceeds smoothly.

Contact us today to schedule a free consultation and discuss how we can assist you.