404.08 Discovery Deposition Objections
Objections made to the taking of a discovery deposition include errors and irregularities to the notice of deposition, the manner of taking the deposition, the form of a question or answer, the oath or affirmation or a party’s conduct, and the disqualification of an officer. [ Note 1.] Objections may also be made as to the competency of a witness or to the competency, relevancy, or materiality of discovery deposition testimony. [ Note 2.]
NOTES:
1. Fed. R. Civ. P. 30(c)(2); Fed. R. Civ. P. 32(d)(1)-(2); Fed. R. Civ. P. 32(d)(3)(B).
2. Fed. R. Civ. P. 30(c)(2); Fed. R. Civ. P. 32(d)(3)(A).
404.08(a) Objections to Notice
Objections to errors and irregularities in a notice of the taking of a discovery deposition must be promptly served, in writing, on the party giving the notice; any such objections that are not promptly served are waived. [ Note 1.] For information concerning the raising of objections to a notice of reliance on a discovery deposition, see TBMP § 707.02 and TBMP § 532. For information regarding a motion to quash a notice of deposition or for a protective order, see TBMP § 410, TBMP § 412, TBMP § 521, and TBMP § 526.
NOTES:
1. Fed. R. Civ. P. 32(d)(1). Compare S. Industries Inc. v. Lamb-Weston Inc., 45 USPQ2d 1293, 1298 (TTAB 1997) (Board will not rule in advance of deposition as to whether information sought is confidential or otherwise objectionable); Neville Chemical Co. v. Lubrizol Corp., 183 USPQ 184, 189 (TTAB1974) (objections to subject matter of deposition may only be raised during, not prior to, the deposition), with Red Wing Co. v. J.M. Smucker Co., 59 USPQ2d 1861, 1864 (TTAB 2001) (objections to subject matter of Fed. R. Civ. P. 30(b)(6) deposition raised prior to deposition). Cf. with regard to notice of testimony depositions, 37 C.F.R. § 2.123(j); Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1652 and 1655 (TTAB 2007) (overruling objections that notice of deposition was facially deficient and noting that a ruling on sufficiency of notice could have been made prior to the deposition by seeking a telephone conference with a Board attorney); Of Counsel Inc. v. Strictly of Counsel Chartered, 21 USPQ2d 1555, 1556 n.2 (TTAB 1991) (premature taking of testimony deposition could have been corrected upon seasonable objection); Steiger Tractor, Inc. v. Steiner Corp., 221 USPQ 165, 169 (TTAB 1984) (testimony deposition excluded where notice did not name witness and objection was timely made and consistently maintained), reconsideration granted on other grounds, 3 USPQ2d 1708 (TTAB 1984); Hamilton Burr Publishing Co. v. E. W. Communications, Inc., 216 USPQ 802, 804 n.6 (TTAB 1982).
404.08(b) Objections as to Disqualification of Officer
An objection to the taking of a discovery deposition because of a disqualification of the officer before whom the deposition is to be taken is waived unless it is made before the deposition begins, or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. [ Note 1.]
NOTES:
1. Fed. R. Civ. P. 32(d)(2). Cf. 37 C.F.R. § 2.123(j).
404.08(c) Objections During Deposition
Fed. R. Civ. P. 30(c)(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
Fed. R. Civ. P. 32(d) Waiver of Objections.
- (3) To the Taking of the Deposition.
- (A) Objection to Competence, Relevance, or Materiality. An objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
- (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:
- (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and
- (ii) it is not timely made during the deposition.
Objections to the competency of a witness or to the competency, relevancy, or materiality of discovery deposition 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. [ Note 1.]
In the case of a discovery deposition taken on oral examination, objections to errors and irregularities occurring at the deposition 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 the parties, and objections to errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonably made at the deposition. [ Note 2.]
For information concerning objections to the form of questions in the case of a discovery deposition on written questions, see TBMP § 404.07(f).
If a party believes that a question propounded at a discovery deposition is improper, it may state its objection thereto. Objections should be made concisely and in a nonargumentative manner. [ Note 3.] Objections should ordinarily be limited to those that under Fed. R. Civ. P. 32(d)(3) might be waived if not made at that time. [ Note 4.] Questions objected to ordinarily should be answered subject to the objection, but a witness may properly refuse to answer a question asking for information which is, for example, privileged or not otherwise subject to disclosure under the terms of either the Board’s standard protective order or, if the parties have made modifications thereto, the parties’ agreed and approved protective order. [ Note 5.] If a witness, having stated an objection to a discovery deposition question, answers the question subject to the objection, and the deposition is subsequently made of record in the proceeding pursuant to the provisions of 37 C.F.R. § 2.120(k)(1), 37 C.F.R. § 2.120(k)(2), 37 C.F.R. § 2.120(k)(3)(i), or 37 C.F.R. § 2.120(k)(4), the propriety of the objection will be considered by the Board at final hearing when the objection is preserved in the final brief; that is, the Board will evaluate the testimony in light of the stated objection. [ Note 6.]
For information concerning the propounding party’s options if a witness not only objects to, but also refuses to answer, a particular question during a discovery deposition, see TBMP § 411.04. [ Note 7.]
NOTES:
1. Fed. R. Civ. P. 32(d)(3)(A). Cf. 37 C.F.R. § 2.123(k); Nahshin v. Product Source International LLC, 107 USPQ2d 1257, 1259 (TTAB 2013) (in unusual circumstance involving testimonial deposition on written questions where adverse party had opportunity to review deponent’s answers before drafting its cross-questions, procedure was akin to an oral deposition and adverse party’s failure to object at the time of service of cross-questions when defect could have been cured resulted in waiver).
2. Fed. R. Civ. P. 32(d)(3)(B). Cf. 37 C.F.R. § 2.123(j).
3. Fed. R. Civ. P. 30(c)(2).
4. Fed. R. Civ. P. 30(d); Fed. R. Civ. P. 30(d) Notes of Advisory Committee on Rules – 1993 Amendment.
5. See 37 C.F.R. § 2.116(g) and 37 C.F.R. § 2.123(e)(4); Fed. R. Civ. P. 26(b), 30(c)(2), and 37(a); Fed. R. Evid. 501; 8A C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2113 (3d ed. April 2021 update). See also Johnston Pump/General Valve Inc. v. Chromalloy American Corp., 10 USPQ2d 1671, 1676 (TTAB 1988) (Board, upon motion to compel, allowed parties time to work out protective order under which confidential information would be provided).
6. 37 C.F.R. § 2.120(k)(3)(i); Fischer GmbH. v. Molnar & Co., 203 USPQ 861, 866 (TTAB 1979) (objections to discovery deposition questions should be preserved and argued in the briefs at final hearing); Neville Chemical Co. v. Lubrizol Corp., 183 USPQ 184, 189 (TTAB 1974). Cf. Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (objections made during testimonial deposition waived due to failure to preserve the objections by renewing them in brief); Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d 1741, 1746-47 (TTAB 2006) (while objections made at time of testimonial deposition were renewed in brief on case, Board deemed objections insufficiently preserved because brief failed to identify the objections with specificity).
7. See also Neville Chemical Co. v. Lubrizol Corp., 183 USPQ 184, 189 (TTAB 1974) (if party objects to and refuses to answer certain deposition questions, party deposing may seek subpoena from court to compel responses or file motion with Board to compel answers).