Disruptions' Function: A Defense of (Some) Form Objections under the Federal Rules of Civil Procedure

12 Seton Hall Circuit Review 161 (2016)

53 Pages Posted: 15 Jul 2016 Last revised: 13 Jan 2020

Date Written: 2016


As the discovery system created by the Federal Rules of Civil Procedure has come under strain, those provisions governing objections during depositions underwent one major change. Today, objections must be “stated concisely in a non-argumentative and non-suggestive manner” and may not include an instruction to the deponent not to answer if unnecessary “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” With only these express provisions and apparent ills as touchstones, a growing cavalcade of opinions has inconsistently adjudged the permissible content of an objection to a question’s form. Many courts have insisted that the Rules, expressly and implicitly, condone the use of such phrases as “objection to form” or “objection, form” and nothing more. Other jurists have demurred. Because the Rules clearly encourage and arguably compel that a proper objection divulge its precise ground, this coterie has asseverated, a simple form objection will never suffice. Instead, a “precise form objection,” this article’s contrasting term, must be used, its foundation -- “asked and answered,” “ambiguous,” “argumentative,” “compound,” and more -- immediately adduced. Delving into the Rules’ language, context, and broader design, both before and after the amendments that became effective on December 1, 2015, this article takes a side, explicating why the Rules compel the use of precise form objections over their plainer kin. In the process, it shows how all the federal rules must be construed, explicating an approach used by multiple courts -- and ready for practitioners' application.

Keywords: Federal Rules of Civil Procedure, federal rules, Rule 26, Rule 1, compound, Title V, Rule 34, Rule 33, form objection, discovery, liberal, precise form objection, Rule 27, Rule 31, Rule 32, deposition, objection, form, argumentative, asked and answered

JEL Classification: K10, K19, K29, K39, K40, K41, K42, K49

Suggested Citation

Shachmurove, Amir, Disruptions' Function: A Defense of (Some) Form Objections under the Federal Rules of Civil Procedure (2016). 12 Seton Hall Circuit Review 161 (2016), Available at SSRN: https://ssrn.com/abstract=2752687 or http://dx.doi.org/10.2139/ssrn.2752687

Amir Shachmurove (Contact Author)

Reed Smith LLP ( email )

Washington, DC 20001
United States

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