Episode 117 - Asked and Answered: How Many Times is Too Many?

In this episode, Jim Garrity tackles the frequent problem of repetitive questions in depositions, and answers the questions "How many of the same questions is too many? What factors should I consider in deciding whether the repetition has transitioned into harassment? And at that point, what do I do?" As always, Jim offers practice tips, identifies the legal grounds for "asked and answered" objections and for instructing deponents not to answer repetitious questions. And don't forget the show notes, full of great cases to illustrate the point.

SHOW NOTES

Siefert, et al. v. Hamilton County Board of Commissioners, 2023 WL 2456853, No. 1:17-cv-511 (S. D. Ohio Mar. 10, 2023) (court declined to reopen deposition, despite numerous instructions by defense lawyer not to answer questions on grounds of “asked and answered,” where it appeared that, by and large, deponent provided the information sought; noting that defense did not, however, comply with the rule relating to instructions not to answer based on harassment by then terminating the deposition or seeking a protective order; similar questions asked approximately two dozen times)

Charles v. People, 2014 WL 2803991, 60 V.I. 823 (S. Ct. V.I. June 20, 2014) (noting judge’s admonishment to defense lawyer with jury present that “. . .if you are going to ask the same questions five, six, seven, eight, nine times, move on to new territory”)

Tajonera v. Black Elk Energy Offshore Operations LLC, 2015 WL 915273, No. CIV-A- 13-0366 (E. D. La. Mar. 3, 2015) (noting repetition of question 7 times, argument with witness and other behavior, declaring it a violation of both the federal rules and a prior order entered in that case that “that during depositions, counsel shall not engage in harassing or repetitive questioning”)

Schenk v. Smith, 1991 WL 71927, 9-90-13, 9-90-14 (Ct. App. Ohio May 6, 1991) (afforming judgment on appeal, finding no error in trial court’s instruction to counsel to desist from further questions on a given topic “since the question had been asked and answered four times. It is within the trial court’s discretion to exclude relevant evidence if its probative value is substantially outweighed by undue delay or needless presentation of cumulative evidence”)

Neighbour v. Matusavage, 25 A.2d 868 (Ct. Err. & App. N.J. 1942) (affirming judgment on appeal in case where trial court directed a witness not to answer and advised counsel that he had so ruled because the same question had been asked and answered 2 or 3 yellow times already, but noting that “the record shows that in fact the same question in slightly varied form had been asked and answered by this witness no less than a dozen times;” observing that “how many times a witness may be asked for the identical information irrespective of contradictory answers is within the sound discretion of the trial court”)

Martinez v. Greiner, 2001 WL 910772, No. 01-cv-2911 (S. D. N. Y. Aug. 13, 2001) (noting court’s observation that multiple defense counsel appeared to ask the same questions 12 to 15 times)

Nolan v. Weil-McLain, 2005 WL 724041, No. 01-L-117 (Ill. Cir. Ct. Mar. 21, 2005) (noting in passing in opinion that a specific question, followed by substantially the same answer, was asked and answered several times throughout a deposition as different defense counsel questioned the deponent)

Zeleny v. Newsom, No. 17-CV-07357-RS (TSH), 2020 WL 6585793, at *4 (N.D. Cal. Nov. 10, 2020) (“The asked-and-answered objection is additionally problematic because it is a speaking objection and therefore also violates Rule 30(c)(2)’s separate prohibition on argumentative and suggestive objections. There is nothing wrong with asking a question multiple times during a deposition. Sometimes the witness didn't answer it, or answered only part of it, or the answer is implausible, or the answer builds in caveats that a slight rephrasing of the question might expose, or asking essentially the same question from different angles or in slightly different ways yields different answers. Unless repeated questioning crosses the line into harassment, it can be an effective technique of cross-examination. Objecting “asked and answered” is a way of coaching the witness because it is not actually objectionable to ask a question multiple times. Saying “asked and answered” can be a way of telling the witness not to change his testimony from what he said before. Also, as every lawyer knows, when the defending attorney objects “asked and answered,” often the question really wasn't answered, so the objection becomes a suggestion to the witness to continue refusing to answer the question, which is what happened here. Defense counsel's instruction not to answer based on his “asked and answered” objection is overruled. Zeleny may depose Bertini further on those questions and on any reasonable follow up questions”)

Fairweather v. Friendly's Ice Cream, LLC, No. 2:13-CV-00111-JAW, 2015 WL 339626, at *4 (D. Me. Jan. 23, 2015) (“The defense makes the odd statement that an objection based on a question having been “asked and answered” is “not a viable objection under any Rule of Evidence and it therefore must be overruled.” Def.'s Objection s at 10. Defense counsel is wrong. Rule 403 of the Rules of Evidence allows a trial court to exclude relevant evidence if its “probative value is substantially outweighed by a danger of ... wasting time[ ] or needlessly presenting cumulative evidence.” FED.R.EVID. 403. The traditional objection that a question has been asked and answered is a shorthand way of making a Rule 403 time wasting and cumulative evidence objection. If a question has already been asked and answered, to ask it again and demand an answer would be to “wast[e] time [and] needlessly present[ ] cumulative evidence.” Id.”)

Mashiri v. Ocwen Loan Servicing, LLC, No. 12cv2838- L (MDD), 2014 WL 4608718, at *2 (S.D. Cal. Sept. 15, 2014) (“If counsel for Plaintiff believed that counsel for Defendant was asking the same question repeatedly in bad faith or to unreasonably annoy, embarrass or oppress Plaintiff, counsel’s option was to move to terminate or limit the deposition under Rule 30(d)(3). Plaintiff's current motion to terminate the deposition is untimely for that purpose as Rule 30(d)(3) requires the motion be made during the deposition.”)

Plaintiff John Doe’s Reply To Non-Party Jane Roe’s Response To Plaintiff John Doe’s Emergency Motions To Hold Non-Party Jane Roe In Contempt Of Court And To Compel Roe’s Deposition, Doe V. Texas Christian University, No. 4:22-CV-00297-O (N. D. Tex. Filed Nov. 17, 2022) (arguing that termination of deposition was improper because terminating counsel did not timely move to terminate the deposition and did not use the language of the rule in terminating, saying instead, “And we will likewise reserve our rights to seek redress because counsel continued to ask the witness questions in a means designed to upset her and harass her and embarrass her, and nonetheless continued pressing that means, and we consider it improper and we’ll raise that issue with the court and – if and when relief is sought”)

Fed. R. Evid. 403 (basis of "asked and answered" objection; allowing exclusion of relevant evidence if there is a risk of needlessly presenting cumulative evidence)

Cf., Episode 38, 10,000 Depositions Later Podcast (addressing related topic of whether multiple lawyers representing one party can question deponent in deposition)