The Appropriateness of Form Objections During Depositions

I recently came across an interesting Order (available here) from the Northern District of Iowa imposing sanctions against an attorney for conduct that occurred in depositions in Security National Bank v. Abbott Laboratories. The Court ultimately ordered the attorney to produce a training video that “provides specific steps lawyers must take to comply with” the Court’s Order. The Order is worth a read, as it details some of the abuses that occur in discovery in federal litigation. (On a related note, Steve Susman and Tom Melsheimer filed an amicus brief in support of the Court’s decision on appeal (available here), which is also worth a read.)

While there were many problematic areas of conduct identified by the Court, I would like to focus on the Court taking issue with the practice of making “form” objections. The Court wrote:

In defending depositions related to this case, Counsel proliferated hundreds of unnecessary objections and interruptions during the examiner’s questioning. Most of these objections completely lacked merit and often ended up influencing how the witnesses responded to questions. In particular, Counsel engaged in three broad categories of improper conduct. First, Counsel interposed an astounding number of “form” objections, many of which stated no recognized basis for objection. Second, Counsel repeatedly objected and interjected in ways that coached the witness to give a particular answer or to unnecessarily quibble with the examiner. Finally, Counsel excessively interrupted the depositions that Counsel defended, frustrating and delaying the fair examination of witnesses. (emphasis added)

The Court faulted counsel for “simply object[ing] to ‘form,’ requiring the reader (and, presumably, the examiner) to guess as to the objection’s basis.” The Court further stated:

In my view, objecting to “form” is like objecting to “improper”—it does no more than vaguely suggest that the objector takes issue with the question. It is not itself a ground for objection, nor does it preserve any objection. Instead, “form” objections refer to a category of objections, which includes objections to leading questions, lack of foundation, assuming facts not in evidence, mischaracterization or misleading question, non-responsive answer, lack of personal knowledge, testimony by counsel, speculation, asked and answered, argumentative question, and witness’ answers that were beyond the scope of the question. . . . [This Court would find that] lawyers are required, not just permitted, to state the basis for their objections. (citation and quotations omitted).

The Court did note, however, that “that not all courts share my views regarding ‘form’ objections. In fact, some courts explicitly require lawyers to state nothing more than unspecified ‘form’ objections during depositions.” Because there was authority supporting “form” objections, the Court declined to grant sanctions on this ground. The Court instead issued the following warning to lawyers: “Although I do not impose sanctions based on Counsel’s ‘form’ objections in this case, lawyers should consider themselves warned: Unspecified ‘form’ objections are improper and will invite sanctions if lawyers choose to use them in the future.”

I found this discussion interesting, as Texas lawyers routinely object to deposition questions based on “form” alone. In fact, doing so is required under the Texas Rules of Civil Procedure:

Objections to questions during the oral deposition are limited to “Objection, leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, nonresponsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court. The objecting party must give a clear and concise explanation of an objection if requested by the party taking the oral deposition, or the objection is waived. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing costs or other sanctions.

Tex. R. Civ. P. 199.5(e) (emphases added).

The Eastern District of Texas has a similar local rule:

Objections to questions during the oral deposition are limited to “Objection, leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, nonresponsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court. The objecting party must give a clear and concise explanation of an objection if requested by the party taking the oral deposition, or the objection is waived.

E.D. Tex. Local Rule CV-30 (emphases added).

The Northern District of Texas does not have a Local Rule on point, but the general practice, at least in my experience, is to follow the Texas Rules and the Eastern District of Texas Rules when objecting. (Federal Rule of Civil Procedure 30(c)(2) simply states: “[a]n objection must be stated concisely in a nonargumentative and nonsuggestive manner.”).

From my experience, the Texas practice is preferable to the practice contemplated (or rather, required) by the Court in Security National Bank, as the “objection, form” route makes depositions go quicker and cannot be used to “coach” the witness (or at least cannot be used to coach the witness as easily as stating the “basis” for the objection (e.g., “calls for speculation,” “hearsay,” etc.)). With respect to the Security National Bank court’s concern that “form” objections make it difficult for the Court to rule on objections, this may be true, but with over 95% of cases settling before trial, and the vast majority of depositions not being used at those trials that do go forward, I don’t view the potential benefit as outweighing the downsides.

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Judge O’Connor Issues Joinder Decision Under America Invents Act

On December 19, 2014, Judge O’Connor issued an Order (available here) in NewCo Enterprises v. Super Heaters granting plaintiffs’ motion to amend their complaint and add claims for direct and induced patent infringement against two third parties. Judge O’Connor found that the joinder motion satisfied the requirements of the America Invents Act, 35 U.S.C. § 299(a), as the action “arises from the same patents and involves the same infringing acts.”

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Judge Lynn Grants Preliminary Injunction In Wheel Pros Case

On December 22, 2014, Judge Lynn issued a Preliminary Injunction Order (available here), which granted Wheel Pros’ motion for preliminary injunction against Wheels Outlet. The Order enjoined the defendant from infringing plaintiff’s patents and trademarks.

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More New Cases Filed In Northern District of Texas

Here are additional intellectual property cases recently filed in the Northern District of Texas:

  • Lone Star Consolidated Foods v. Select Brands: the complaint (available here) asserts trademark and unfair competition claims.
  • S&A Systems v. Fleet Watch: S&A claims Fleet Watch has committed trademark infringement and false advertising (complaint available here).
  • Katch Kan v. Can-Ok: Katch Kan asserts that Can-Ok infringes U.S. Patent No. 6,666,287, which claims technology relating to enclosing oil drilling rigs (complaint available here).
  • Morris & Schaefer Learning v. Soft Skills Learning: Morris asserts Soft Skills engaged in false advertising and unfair competition (complaint available here).
  • RXpress Pharmacy v. Afgin Pharma: with its complaint (available here), RXpress seeks a declaratory judgment of non-infringement of United States Patent No. 8,329,734, titled “Topical Therapy for Migraine.”
  • Jericho Systems v. Axiomatics: Jericho claims that Axiomatics infringes U.S. Patent No. 8,560,836, which claims technology relating to enterprise resource policies. (Complaint available here.)
  • S-Line v. B2B Supply: S-Line accuses B2B of infringing U.S. Patent No. 7,731,462, which claims a bulkhead (complaint available here).
  • Mannatech v. Wellness Quest: Mannatech claims Wellness infringes U.S. Patent No. 7,157,431, entitled “Compositions of Plant Carbohydrates as Dietary Supplements.” (Complaint available here).
  • Credit Card Fraud Control v. Chase Paymentech & First Data: Credit sued Chase and First Data asserting claims of infringement of U.S. Patent No. 8,630,942, entitled “Method of Billing a Purchase Made Over a Computer Network.” (Complaints available here and here.)
  • Monster Moto v. APT Group: Monster Moto seeks a declaratory judgment of patent invalidity and non-infringement with respect to APT Group’s U.S. Design Patent No. D689,798. (Complaint available here).
  • Icon Laser Solutions v. The Gap & V.F. Corporation: Icon claims The Gap and V.F. Corp. infringe U.S. Patent No. 5,567,207, entitled “Method for Marking and Fading Textiles with Lasers.” (Complaints available here and here).
  • Aeritas v. Gamestop: Aeritas alleges that Gamestop infringes U.S. Patent Nos. 7,706,819 and 8,055,285, both of which are entitled “Mixed-Mode Interaction.” (Complaint available here).
  • TransFirst v. Protegrity Corp.: TransFirst seeks a declaratory judgment that it has not infringed Protegrity’s U.S. Patent Nos. 6,321,201; 7,325,129; 7,490,248; 6,963,980; and 8,402,281. (Complaint available here).
  • Corduro v. Protegrity Corp.: Corduro seeks a declaratory judgment that it has not infringed Protegrity’s U.S. Patent Nos. 6,321,201; 6,963,980; and 8,402,281. (Complaint available here).
  • Credit Card Fraud Control Corp. v. TrustCommerce, Maxmind, & Elavon: CCFC accuses defendants of infringing U.S. Patent No. 8,630,942, entitled “Method of Billing a Purchase Made Over a Computer Network.” (The three complaints are available here, here, and here.)
  • Cinsay v. wireWAX: Cinsay accusing wireWAX of infringing U.S. Patent Nos. 8,782,690 and 8,549,555, both entitled “Interactive Product Placement System and Method Therefor.” (Complaint available here).
  • Bascom v. AT&T: Bascom accuses AT&T of infringing U.S. Patent No. 5,987,606, entitled “Method and System for Content Filtering Information Retrieved from an Internet Computer Network.” (Complaint available here).
  • Hawk Technology Systems v. Southern Methodist University: Hawk claims SMU infringes U.S. Patent No. RE43,462, which covers technology relating to video storage and display systems (complaint available here).
  • Securus v. Global Tel*Link Corp.: Securus claims Global infringes four patents relating to call processing. (Complaint available here).
  • Tucker-Rocky Corp. v. First Gear Project: Tucker-Rocky claims First Gear has committed trademark infringement, false designation of origin and unfair competition (complaint available here).
  • Luve v. Triboro Quilt: Luve asserts a copyright infringement claim against Triboro (complaint available here).
  • Word to Info v. Facebook & Google: Word to Info asserts seven patents against Facebook and Google. (Complaints available here and here).
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Judge Kinkeade Grants Transfer In DietGoal Case

DietGoal originally filed suit against Taco John’s in the Eastern District of Texas. Taco John’s filed a motion to dismiss the action for improper venue. The East Texas Court denied the motion to dismiss and instead transferred the case to the Northern District of Texas. Judge Kinkeade (in an order available here) then transferred the case to the District of Wyoming.

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New Northern District of Texas Cases

There have been lots of new cases filed in the Northern District of Texas that I haven’t posted yet about, including:

  • Slide Fire Solutions v. Bump Fire Systems: Slide Fire asserts that Bump Fire infringes eight patents relating to firearms (complaint available here).
  • Heat On-The-Fly v. Enservco Corp.: Heat asserts two patents against Enservco relating to water heating technology (complaint available here).
  • Richmond v. SW Closeouts: plaintiff asserts infringement of a patent relating to solar-power garden lighting (complaint available here).
  • StoneEagle v. Talon Transaction: StoneEagle asserts various causes of action, including breach of contract, patent infringement, and service mark infringement (complaint available here).
  • Halle Joy Collection v. Lanececo Industries: Halle Joy filed a declaratory judgment action seeking a declaration of non-infringement of copyright and of a design patent (complaint available here).
  • Wheel Pros v. Wheels Outlet: Wheel Pros filed suit (complaint available here) against Wheels Outlet asserting various claims relating to “unauthorized and willful infringement and counterfeiting of Wheel Pros’ trademarks in connection with Defendants’ wheel products, product packaging, and promotional materials.”
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Judge Godbey Transfers Case Due to First-to-File Rule

On October 21, 2014, Judge Godbey issued an Order (available here) in Monster Moto v. APT Group. The Order found that, under the “first-to-file rule,” the Northern District of Texas case would be transferred to the Western District of Missouri, the locus of an earlier filed, related lawsuit:

The Court finds there is substantial overlap between these two cases and accordingly declines to hear the case before it under the first-to-file rule. The core issue in both cases is whether Monster Moto infringed on MotoVox’s and APT IP Holdings’s intellectual property rights. Even Monster Moto’s tort claims in this action relate to this issue because they concern allegedly false statements made by MotoVox and APT IP Holdings regarding Monster Moto’s alleged infringement. Additionally, the proof in both cases would be nearly identical because MotoVox and APT IP Holdings would present evidence of the alleged validity of the patent and of Monster Moto’s allegedly infringing conduct in both cases.

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Judge Lynn Issues Claim Construction Opinion in Wireless Handover v. AT&T

On August 28, 2014, Judge Lynn issued a Claim Construction Order in Wireless Handover v. AT&T (available here). The opinion construed the disputed claim terms in United States Patent No. 7,953,407.

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Federal Circuit Reprimands Attorney Who Forwarded Former Chief Judge Rader’s E-Mail Praising The Attorney

On November 5, 2014, the Federal Circuit sat en banc and issued an Order reprimanding a well-known patent appellate attorney for “his misconduct in disseminating an email to clients and prospective clients that he received from then-Chief Judge Rader.” The Order, available here, contains the e-mail at issue, and is worth a read. The Order also references the fact that, in the course of considering the e-mail issue, the Federal Circuit also considered

another matter relating to [the attorney]. This additional matter is separate from and does not directly involve the email matter discussed above. This matter concerns the exchange of items of value between [the attorney] and then-Chief Judge Rader. [The attorney] provided a ticket for one concert, at another concert arranged for upgrading to a standing area near the stage, and arranged for backstage access for then-Chief Judge Rader at both. Then-Chief Judge Rader paid for accommodations. This occurred while [the attorney] had cases pending before this court. We do not decide whether [the attorney’s] actions violated standards of professional responsibility. We have decided to refer this separate matter and the underlying relevant documents to the California bar authorities for their consideration.

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N.D. Tex.’s Updated ECF Administrative Procedures Manual

The latest copy of the N.D. Tex.’s ECF Administrative Procedures Manual can be found here. The Manual provides instructions for, among other things, (i) filing a civil or miscellaneous case, (ii) signature blocks, (iii) proposed orders, and (iv) emergency filing procedures when ECF is down. 

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