Episode 182 - "Certify the Question!" Wait. What?

Ever heard a lawyer state "Certify the question!" to the reporter during a deposition, and wonder what it means? Wonder no more! Today, Jim Garrity explains the maneuver, its history, and why it could have value for you. "Certifying a question" is considered arcane by some, because it's no longer required in order to preserve your right to seek a motion to compel or other relief due to a deponent's failure to answer the question, or because of a lawyer's misconduct. But it is a useful tool for flagging specific questions and answers, because it allows your reporter to prepare an excerpted transcript that contains just those certified exchanges. So listen and learn! Today's a great episode, with actionable practice tips and, in the show notes, a wealth of primary and secondary authorities. SHOW NOTES Cases Rainbow Popcorn Co. v. Intergrain Specialty Prods., L.L.C., No. 7:06CV5015, 2008 WL 2184116, at *11–14 (D. Neb. May 23, 2008) (Piester, M.J.) (defense counsel instructed the witness not to answer eight questions, then after lunch referred to them as questions "that were certified" and offered to let the witness answer; plaintiff's counsel said going back would be difficult and deferred them to the Rule 30(b)(6) depositions; in opposing the motion to compel, defendants argued plaintiff "failed to properly certify the questions"; the court did not address that argument; instructions "highly improper" under Rule 30(c)(2); having the reporter find the unanswered questions during the deposition was "neither a realistic remedy nor a fair option"; deferral not a waiver; monetary sanctions and reconvened deposition ordered) Gall v. St. Elizabeth Med. Ctr., 130 F.R.D. 85, 86–87 (S.D. Ohio 1990) (Merz, M.J.) (asking a court reporter notary to certify a question to the court is not a recognized method of obtaining a ruling under the Federal Rules; the exclusive means of obtaining a formal ruling are motions under Rules 26, 30, and 37; repetitiveness is not a ground for an instruction not to answer) Palma v. Lake Waukomis Dev. Co., 48 F.R.D. 366, 367, 370 (W.D. Mo. 1970) (Oliver, J.) (on motion to compel after instructions not to answer, noting "[t]he questions have been duly certified"; compelling answers and ordering payment of $121.25 "to cover the cost of transcribing the certified questions" plus a $100 fee) Lamb v. M & M Assocs., Inc., No. C-3-96-463, 1998 WL 34288694 (S.D. Ohio Sept. 1, 1998) (Rice, C.J.) (counsel asked the notary to "mark that portion of the deposition," and the notary filed an application for advice; following Gall; instruction not to answer violated then-Rule 30(d)(1); declining to resolve the dispute on the notary's application because the parties may let the matter drop after the deposition) Guster-Hines v. McDonald's USA, LLC, No. 20 C 117, 2024 WL 4242009, at *1, *4–5 (N.D. Ill. May 21, 2024) (Finnegan, M.J.) (court had directed plaintiffs to proceed with non-party deposition and "certify any questions that required a ruling"; ruling on 55 certified questions in seven categories; motion granted in part and denied in part) Doe v. Bd. of Trs. of Neb. State Colls., No. 8:17CV265, 2018 WL 6839825, at *6 (D. Neb. Dec. 31, 2018) (Zwart, M.J.) (deposing party "may certify the questions and objections and present the deposition transcript as supporting evidence on a motion to compel") Rules and reporter authorities Fed. R. Civ. P. 30(c)(2) (objections noted; testimony taken subject to objection; instruction not to answer limited to privilege, court-ordered limitation, or a Rule 30(d)(3) motion) Fed. R. Civ. P. 30(d)(2) (sanctions on a person who impedes, delays, or frustrates the fair examination of the deponent); 30(d)(3) (motion to terminate or limit; not discussed in the body) Fed. R. Civ. P. 37(a)(3)(B)(i) (motion to compel when a deponent fails to answer a question asked under Rule 30 or 31); 37(a)(1) (motion must include a certification that the movant conferred or attempted to confer in good faith); 37(a)(5) (expenses; not discussed in the body) Fed. R. Civ. P. 30(f)(1) (the only certification Rule 30 spells out: the officer certifies the oath and the accuracy of the record; not discussed in the body) Ind. R. Trial P. 30(C) (on an instruction not to answer or a refusal, "either party may have the question certified by the Reporter," and the certified question and objection are delivered to the requesting party, "who may then proceed under Rule 37(A)") Texas Uniform Format Manual §§ 3.5, 3.24(a)(7) (Supreme Court of Texas, Misc. Docket Nos. 10-9077, 10-9113; page updated Apr. 1, 2026) (defining certified question; separate booklet on attorney's request; "All certified questions must be listed in the index") Ohio Rev. Code § 147.07 (as cited in Gall, 130 F.R.D. at 86: notaries may compel attendance and punish refusals to testify; apparently revised and removed from the code in April 2025) Depositions by Filevine, Digital Reporter Help Center, "Certifying Questions" (last updated Aug. 29, 2025) (when lawyer certifies a question, reporter should respond "So certified" and note the question, timestamp, and details) Additional Authorities Consequences of Instructing Deponents Not to Answer, 65 Fla. B.J. 39 n.1 (Apr. 1991) ("'certifying' a question is unnecessary" in view of then-Rule 37(a)(2)) Instructing a Witness Not to Answer a Question, 2021 MDPS MD-CLE 227 (Md. State Bar Ass'n) (calling "Certify the question" an "arcane, but very common, formulation")