Gregory Joseph posted a note about an interesting case, McElgunn v. CUNA Mutual Insurance Soc’y, 700 F. Supp. 2d 1141 (D.S.D. 2010)(first-party bad faith case for non-ERISA disability benefits), which addressed the vexing issues of whether lawyers’ objections and colloquy during a videotaped de bene esse deposition should be excised on play back before a jury. See “No Error in Allowing Jury to Observe Objections, Instructions and Colloquy on Video Deposition,” http://www.josephnyc.com/blog/?blogID=1485. Apparently the trial court overruled the great majority of the objections, and the losing party further objected to the playback of its counsel’s repeated objections. The court, noting no authority had been cited for requiring editing, permitted the playback without editing of the objections and colloquy. The trial court further reasoned that the jury’s viewing of the objections on the videotape was “no different than what the jury would see if an attorney made similar objections at trial during an examination of a witness.” The trial court also noted that the jury should be allowed to observe the witness’s reaction to the objections and the colloquy.
Joseph does not comment upon this ruling, which in some ways is a troubling precedent. Of course it is not the district judge’s fault that the Rules Committee has not addressed the practical issues raised by the growing use of videotaped depositions at the time of trial. The court, however, is incorrect to the extent that common sense would be some authority for allowing redaction of objections and colloquy. If the testimony had taken place in court, the objecting party would have had three advantages. First, its counsel could have had the benefit of the court’s rulings early in the testimony, and those rulings may have persuaded the counsel that the issue was not worth pressing or preserving further. Second, the objecting lawyer could have requested a continuing objection to a line of testimony, and thus avoided appearing to be obstructionist before the jury. Of course, such a request for a continuing objection could be made on the record of the deposition, but the defender would not know for sure that the court will ultimately honor the request. Third, even if ruling on the objection were a discretionary call for the trial judge, the presentation of the testimony from a witness on the stand may have caused the trial judge to take greater control of the courtroom, despite overruling the objection overruled. (How many times have trial judges overruled a leading question on direct examination, but then admonished the examiner to stop leading?) Surely, the party defending a de bene esse videotaped deposition should not be disadvantaged by operating in the dark about how the court will ultimately rule on objections.
Perhaps the Rules Committees will address the problems posed by the McElgunn decision; the issues have certainly been with us for long enough.
