Deposition No-Nos

 

A party may be sanctioned for failing to answer a question.  M.R.C.P. 37(a)(2) ("If a deponent fails to answer a question ..., the discovering party may move for an order compelling an answer .... When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order."); M.R.C.P. 37(a)(4) ("If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust."); see also 8A Charles Alan Wright, Arthur R. Miller et al., Federal Practice and Procedure § 2116 (3d ed. 2010) ("An alternative method by which a court ruling upon the propriety of the examination may be obtained is by refusal of the witness to answer particular questions, thus provoking a motion under Rule 37(a) to compel an answer.... Although there is thus a substantial preference for requiring that deponents apply to the court for protection rather than simply refusing to answer questions, it is to be hoped that the courts will take a realistic view of the conduct of depositions rather than foreclose deponents' objections in response to motions to compel answers.").

Except for the purpose of preserving a privilege, the Mississippi Rules of Civil Procedure do not provide for counsel to instruct a witness not to answer a question at a deposition, even if the question is indeed objectionable. See M.R.C.P. 30. Objections should be made at the time of the deposition and "shall be noted upon the transcription or recording. Evidence objected to shall be taken subject to the objections." M.R.C.P. 30(c) ; see also Banks v. Office of the Senate Sergeant–at–Arms , 222 F.R.D. 1, 6 (D.D.C. 2004) ; Ethicon Endo–Surgery v. U.S. Surgical Corp. , 160 F.R.D. 98, 99 (S.D. Ohio 1995).