![]() ![]() When the deposition is at the request of opposing counsel, an objection is proper where an expert has not been fairly compensated for the separate time and work to prepare specifically for the deposition. The federal rules require that experts be properly compensated for providing deposition testimony under FRCP 26(b)(4)(E)(i)-(ii). Whenever an objection to form is raised, the witness is still required to answer but the objection notes for the record that the form of the question was improper for being:ĩ) Opposing party’s failure to compensate the expert Improper form objections can fall into many categories, where some jurisdictions require the objecting party to note a specific ground and others allow a general “objection to form.” A common example is when an expert is asked a compound question, meaning a series of multiple questions without giving the witness an opportunity to answer each individually. “Objection to form” is a vague and broad objection, commonly raised during depositions. This sometimes occurs when the expert asks the interviewer for clarification about a question. The expert is there to testify to factual matters and questions presented should not presuppose or suggest the answer. 7) Leading or coaching of the expert witness by opposing counselĪnother standard objection when an expert is under direct examination by opposing question. Especially where scientific or otherwise technical data and conclusions are concerned, it is important to clear these mischaracterizations up on the record when they occur. In some instances during an expert’s deposition, opposing counsel may phrase a question by misstating the expert’s earlier testimony. 6) Mischaracterization of earlier testimony For example if the question is repeated to harass or otherwise embarrass the witness. This is especially important if the question is asked for any other purpose except clarification of earlier testimony. “Asked and answered” is a standard objection during depositions when the deponent is repeatedly asked a question they have answered. 5) Answers already provided by the expert earlier in the deposition The expert witness may answer when the certain persons designated in the protective order leave the deposition room. For example, Rule 26(c)(1)(G) says “he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including…requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” This is an important rule to remember when dealing with terms of a business contract or client medical history. Under FRCP 26(c)(1), a party can move for a protective order of parts of an expert’s testimony that may require disclosure of sensitive and protected information. 4) Confidential information protected from persons at the deposition When appropriate, counsel can make the objection that the question is outside the scope of the expert’s assigned task. For example, in a medical malpractice case involving a faulty device, an expert may be familiar with other similar devices and face questions about his or her opinion about devices from other manufacturers. ![]() Generally, questions that attempt to elicit information outside the scope of the witness’ expertise are improper. 3) Testimony outside the scope of expert’s assigned task It is important to note that any objection based on privilege must be made or it is waived for the party that failed to raise it on the record. The Advisory Committee notes “he refocus of disclosure on “facts or data” is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.” 2) Privileged information Questions that ask expert witness opinions about the legal analysis of the case rather than purely factual information are objectionable on the grounds that the testimony qualifies as attorney work product protected under FRCP 26(b)(4)(C). For example, counsel can object when a question asks the expert for: 1) Legal analysis Instead of factual information It is important to note, however, that a deposition is still different than trial and there are a number of objections that can be properly raised with respect to an expert’s deposition testimony. In addition to its scientific and technical nature, sworn testimony that can be used to later impeach an expert witness at trial. Deposition ObjectionsĪn expert’s deposition is an important part of their overall testimony. Here, we cover a wide range of possible objections both attorneys and experts should review before deposition or trial. From discovery to trial, there are several occasions when objections to an expert’s opinion are proper.
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