Opinion
ADM File No. 2007-09.
May 30, 2008.
On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendments of Rule 2.306 of the Michigan Court Rules are adopted, effective September 1, 2008.
[Deletions are indicated by strikethrough and insertions by underline.]
Rule 2.306 Depositions on Oral Examination
(A)-(B)[Unchanged.]
(C) Conduct of Deposition; Examination and Cross-Examination; Manner of Recording; Objections; Conferring with Deponent.
(1) Examination of Deponent.
(a) The person before whom the deposition is to be taken must put the witness on oath.
(b) Examination and cross-examination of the witness shall proceed as permitted at a trial under the Michigan Rules of Evidence.
(c) In lieu of participating in the oral examination, a party may send written questions to the person conducting the examination, who shall propound them to the witness and record the witness's answers.
(2) Recording of Deposition. The person before whom the deposition is taken shall personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the witness.
(a)-(b) [Unchanged.]
(3) Recording by Nonstenographic Means. The court may order, or the parties may stipulate, that the testimony at a deposition be recorded by other than stenographic means.
(a)-(d) [Unchanged.]
(4) Objections During Deposition.
(4) (a) All objections made at the deposition, including objections to
(a)(i) the qualifications of the person taking the deposition,
(b)(ii) the manner of taking it,
(c)(iii) the evidence presented, or
(d)(iv) the conduct of a party,
must be noted on the record by the person before whom the deposition is taken.
Subject to limitation imposed by an order under MCR 2.302(C) or subrule (D) of this rule, evidence objected to on grounds other than privilege shall be taken subject to the objections.
(b) An objection during a deposition must be stated concisely in a civil and nonsuggestive manner.
(c) Objections are limited to
(a) objections that would be waived under MCR 2.308(C)(2) or (3), and
(b) those necessary to preserve a privilege or other legal protection or to enforce a limitation ordered by the court.
(5) Conferring with Deponent.
(a) A person may instruct a deponent not to answer only when necessary to preserve a privilege or other legal protection, to enforce a limitation ordered by the court, or to present a motion under MCR 2.306(D)(1).
(b) A deponent may not confer with another person while a question is pending, except to confer with counsel to decide whether to assert a privilege or other legal protection.
(D) Motion to Terminate or Limit Examination; Sanctions; Asserting Privilege.
(1) Motion. At any time during the taking of the deposition, on motion of a party or of the deponent and on a showing that the examination is being conducted in bad faith or in a manner unreasonably to annoy, embarrass, or oppress the deponent or party, or that the matter inquired about is privileged, a court in which the action is pending or the court in the county or district where the deposition is being taken may order the person conducting the examination to cease taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in MCR 2.302(C). If the order entered terminates the examination, it may resume only on order of the court in which the action is pending.
(2) Sanctions. On motion, the court may impose an appropriate sanction — including the reasonable expenses and attorney fees incurred by any party — on a person who impedes, delays, or frustrates the fair examination of the deponent or otherwise violates this rule.
(2)(3) Suspending Deposition. On demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to move for an order. MCR 2.313(A)(5) applies to the award of expenses incurred in relation to the motion.
(3)(4) Raising Privilege before Deposition. If a party knows before the time scheduled for the taking of a deposition that he or she will assert that the matter to be inquired about is privileged, the party must move to prevent the taking of the deposition before its occurrence or be subject to costs under subrule (G).
(4)(5) Failure to Assert Privilege. A party who has a privilege regarding part or all of the testimony of a deponent must either assert the privilege at the deposition or lose the privilege as to that testimony for purposes of the action. A party who claims a privilege at a deposition may not at the trial offer the testimony of the deponent pertaining to the evidence objected to at the deposition. A party who asserts a privilege regarding medical information is subject to the provisions of MCR 2.314(B).
(E)-(G) [Unchanged.]
Staff Comment: These amendments require that objections to questions asked at a deposition be concise, and be stated in a civil and nonsuggestive manner. The purpose of these amendments is to prohibit the practice of counsel interposing "speaking objections" that are designed to instruct the witness. Further, the amendments require that objections and instructions not to answer a question be limited to a claim of privilege or other legal basis, and prohibit a deponent from conferring with anyone while a question is pending, except to confer with counsel regarding assertion of a privilege or other legal protection. Finally, the amendments add specific language allowing a court to impose sanctions, including reasonable attorney fees and costs, on a person who impedes, delays, or frustrates the fair examination of the deponent or otherwise violates the rule.
The staff comment is not an authoritative construction by the Court.