Episode 68 -Objecting to the Use of Partial or Incomplete Documents in Depositions

Why do litigators feel comfortable dismembering emails, and showing deponents only fragments of the actual conversation? More importantly, why do they think it's okay? In this episode, Jim Garrity discusses "rule of completeness" objections, and why you need to make them. As always, be sure to check out the show notes, which contain the authorities on which each episode is based. The show notes below for this episode contain nine references to authorities. If you can't see them all wherever you download your podcasts, be sure to click through to our episode and podcast homepage, where the complete list is always displayed. Thanks for listening!Cases that begin with a double asterisk (**) were added after the episode was first aired.SHOW NOTES**House, et al v. Players' Dugout, et al., 2021 WL 4898071, No. 3:16-CV-00594-RGJ, 2021 WL 4898071, at *9 (W.D. Ky. Oct. 20, 2021) (stressing crucial nature of making of objections at deposition where error is curable, failing which objection is deemed waived)Fakes v. Eloy, 2014 IL App (4th) 121100, ¶ 88, 8 N.E.3d 93, 110 (“Indeed, the rule of completeness is not limited to discovery depositions but also applies to the following broad range of evidence: “Oral conversations, parts of written or recorded statements or in the nature of addenda thereto, and written or recorded statements neither part of the previously introduced written or recorded statement nor in the nature of addenda thereto may be introduced by an opposing party on his or her next examination of the same witness, whether cross or redirect, provided such evidence tends to explain, qualify, or otherwise shed light on the meaning of the evidence already received”)Mayor & City Council of Baltimore v. Theiss, 354 Md. 234, 253, 729 A.2d 965, 975 (1999) (to preserve a deposition objection to any error or irregularity that might be cured if a timely objection had been made at deposition, the objecting party must state the ground for the objection before the conclusion of the deposition, so that the opposing party will have a chance to cure or obviate the error or irregularity)Walker v. Spina, No. CIV 17-0991 JB\SCY, 2019 WL 538458, at *18 (D.N.M. Feb. 11, 2019) (“By allowing the other party to present the remainder of the writing or recorded statement immediately rather than later on cross-examination, this rule avoids the situation where a statement taken out of context “creates such prejudice that it is impossible to repair by a subsequent presentation of additional material”)Walker v. Spina, No. CIV 17-0991 JB\SCY, 2019 WL 538458, at *19 (D.N.M. Feb. 11, 2019) (nothing that courts have provided guidance on when the rule of completeness applies. See, e.g., United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992); United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1160 (C.D. Cal. 2008)(Pregerson, J.). The United States Court of Appeals for the Seventh Circuit has applied a four-part test to determine whether to allow evidence under rule 106: “(1) does [the evidence] explain the admitted evidence, (2) does it place the admitted evidence in context, (3) will admitting it avoid misleading the trier of fact, and (4) will admitting it insure a fair and impartial understanding of all of the evidence.” Velasco)State v. Johnstone, 486 S.W.3d 424, 432–33 (Mo. Ct. App. 2016) (“This ‘rule’ holds that a *433 party may introduce evidence of the circumstances of a writing, statement, conversation, or deposition so the jury can have a complete picture of the contested evidence introduced by the adversary.” State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49–50 (Mo. banc 2006) (emphasis added). “This rule seeks to ensure that an exhibit is not admitted out of context.” State v. Jackson, 313 S.W.3d 206, 211 (Mo.App.E.D.2010) (emphasis added). “The adverse party is entitled to introduce or to inquire into other parts of the whole exhibit in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced”)Fed. R. Civ. P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615”)Fed. R. Civ. P. 32(a)(6) (“If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts”)Fed. R. Evid. 106. Remainder of or Related Writings or Recorded Statements (“If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time”)Fed. R. Civ. P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A)” )