I have seen it many times. A deposition is taken in a federal case, and the lawyers agree to take it by the Texas rules. They may even be vague and simply agree to take it “by the rules”, or even stay silent for that matter. I have a sneaky suspicion that many times these agreements are made due to a lack of familiarity with the federal rules with respect to depositions. But if you are a lawyer defending your client’s deposition, you are missing out on a key opportunity to use the federal rules to your advantage when it comes to objections. And if you are a lawyer taking the deposition, you are missing out on an opportunity to fine tune your questions to the witness.
All Texas litigators are familiar with the trio of objections allowed under the state rules: “Form”, “Nonresponsive”, and “Leading”. Perhaps this familiarity breeds a bit of laziness in agreeing to these same rules in federal depositions. However, FRCP 30(c)(2) allows for a concise objection to be made in a nonargumentative and nonsuggestive manner. In other words, you are not limited to the three basic state court objections. Keep in mind that certain federal jurisdictions, such as the Eastern District of Texas, allow for objections similar to the state rules. But in most others you should generally be abiding by the federal rules.
As a lawyer defending your client’s deposition, your Rule 30 objections will provide more information to your client as to why a certain question was not proper. Of course, that also affords the questioning attorney an opportunity to “fix” his question once he hears the type of objection being made. Therefore, you can decide if the federal rules provide a worthwhile advantage to you based on the demeanor of the witness, as well as the skill and experience of opposing counsel. But don’t leave any such advantage on the table for the sake of expediency, or worse, a lack of familiarity with the rules.