Commercial Litigation and Arbitration

No Error in Allowing Jury to Observe Objections, Instructions and Colloquy on Video Deposition

From McElgunn v. CUNA Mut. Ins. Soc., 700 F. Supp. 2d 1141 (D.S.D. 2010):

Defendant argues that the court erred in allowing the jury to observe defendant's numerous objections found throughout the designated portions of JoAnn Schonasky's videotaped deposition. Defendant also argues that the jury should not have been allowed to observe the exchange between plaintiff's attorney, defendant's attorney, and the witness, Sherry Isely, when defendant's attorney instructed the witness not to answer certain questions during her videotaped deposition.

With regard to JoAnn Schonasky's deposition, almost all of the objections were overruled. (Docket 382.) Defendant has not argued that the court erred in its rulings on those objections. Defendant has not identified any authority indicating that a jury should not be allowed to observe the objections that were overruled. Moreover, allowing the jury to see those portions of the deposition where defendant's attorney objected is no different than what the jury would see if an attorney made similar objections at trial during an examination of a witness.

With regard to Sherry Isely, it was not error for the court to allow the video deposition of Isely to be played in its entirety because the witness's demeanor and answers during the moments surrounding the exchange were relevant for purposes of allowing the jury to determine the witness's credibility.

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