Photo of Bexis

We read a couple of recent articles in the local Philadelphia legal press questioning whether lawyers participating in depositions really had any idea what the “usual stipulations” for their depositions even were.  Between the two articles, they cited three cases.  The issue also prompted some discussion among us bloggers, with one of us commenting that, “for decades,” he has rejected reference to “usual stipulations” in depositions, in favor of the phrase “applicable rules and orders.”

Given the evident lack of clarity, we decided to take a look at this question – from the perspective of actual judicial decisions.  One case we found not only agrees with the general tenor of those articles, but was quoted by one of them.  “Everyone purports to know without asking the content of the ‘usual stipulations’ until a dispute arises; the ephemeral nature of the parties’ understanding is then quite apparent.”  United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 473 n.8 (E.D. Cal. 1994).

But other cases discussing the “usual stipulations” do allow some conclusions to be drawn about them.

First, we note that litigants have the “right” not to agree to the “usual stipulations.”  In re Endres, 103 B.R. 49, 54 (Bankr. N.D.N.Y. 1989).  See Garces v. Pickett, 2021 WL 978540, at *10 (E.D. Cal. March 16, 2021) (pro se plaintiff could object “to ‘the usual stipulations’ because he does not know what they are and has not agreed to them”).  But if no objection is made to an invocation of “usual stipulations,” silence can be considered consent.  Garcia v. Co-Con, Inc., 629 P.2d 1235, 1236 (N.M. App. 1980).

One “usual” stipulation is that a “deposition may be used with the same full force and effect if not signed as though it were signed.”  People v. Hjelm, 37 Cal. Rptr. 36, 39 (Cal. App. 1964).  This stipulation “permit[s] the use of . . . unsigned depositions.”  Singh v. Brown, 982 N.Y.S.2d 860, 862 (N.Y. Sup. 2014).  Put another way, this “usual stipulation” provides that the deponent “waives signature.”  Garcia, 629 P.2d at 1236.

Waiver of a party’s reading the deposition transcript for errors is another of the “usual stipulations.”  See Fundacion Segarra-Boerman e Hijos, Inc. v. Martinez-Alvarez, 2019 WL 13109319, at *1 (D.P.R. Nov. 27, 2019) (discussing the deponent’s review of a deposition in connection with “the usual stipulations pertaining to a deposition”); Molfese v. Fairfaxx Corp., 2006 WL 908161, at *1 & n.3 (D. Conn. April 4, 2006) (counsel understood “that the ‘usual stipulations’ means that the request to read and sign the transcript was waived”).

The “usual stipulations” at depositions also address objections.  A typical example is, “that all objections except those as to the form of the question, shall be reserved to the time of the trial.”  Fodelmesi v. Schepperly, 1990 WL 115607, at *2 (S.D.N.Y. Aug. 10, 1990).  Through this stipulation, “[t]he parties are not forced to waive their objections and depositions are conducted in a more orderly fashion.”  Thomas v. Hoffmann-LaRoche, Inc., 126 F.R.D. 522, 524 n.1 (N.D. Miss. 1989).  “The purpose of the so-called ‘usual stipulations’ is to force an objection to the form of a question where the issue can be corrected during the deposition.”  In re On-Site Fuel Service, Inc., 2019 WL 2252003, at *11 (Bankr. S.D. Miss. May 24, 2019) (quoting Perez v. Bruister, 2014 WL 3779640, at *1 (S.D. Miss. July 31, 2014)).  See Jistarri v. Nappi, 549 A.2d 210, 216 (Pa. Super. 1988) (“the usual stipulations concern[] all but the form of the questions”).  The “rules of civil procedure permit parties to stipulate to preserve any objections as to the taking of the deposition until the time of trial.”  Benson v. Shuler Drilling Co., 871 S.W.2d 552, 557 (Ark. 1994) (citing an article about the “usual stipulations”).

In Connecticut, a court rule addresses most of the “usual stipulations” concerning deposition objections:

All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition.  Evidence objected to shall be taken subject to the objections.  Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity.

Conn. Practice Book §13-30(b).  See Ranfone v. Ranfone, 2007 WL 1414169, at *2 (Conn. Super. Ct. Apr. 24, 2007) (discussing usual stipulations in the context of a sanctions motion).

Generally, “[o]nce such a “usual stipulation” is agreed to, “it [i]s too late to interject objections and block the answering of questions in the orderly course of the deposition.”  Prohaski v. Yale New Haven Hospital., 2007 WL 942088, at *3 (Conn. Super. March 8, 2007).  However, this aspect of the “usual stipulations” does not extend to objections based on privilege.  Fodelmesi, 1990 WL 115607, at *3.  “[N]o decision hold[s] that [the “usual stipulations”] convention protects counsel who allows privileged information to be entered into the record.”  Shaffer v. Pennsbury School Dist., 525 F. Supp.3d 573, 581 (E.D. Pa. 2021).  “Unlike other matter which can be elicited at a deposition and then objected to later, privileged matter must remain undisclosed in order to remain privileged.”  Id. (finding failure to object was a waiver of privilege).  Accord Messner v. Korbonits, 39 Pa. D. & C.3d 182, 187 (Pa. C.P. 1982) (“reciting the preliminary stipulation of counsel, at the time of plaintiff’s deposition, that all objections were reserved until trial” does not prevent waivers of privileges).

Based on this case law, we conclude that the “usual stipulations” consist of:

  • The parties waive the deponent signing the deposition transcript.
  • The parties waive the deponent reading and correcting the deposition transcript.
  • All objections to the questioning, except to the form of the question, are preserved and are not waived by failure to object during the deposition – but this stipulation does not cover privileged information.

That seems to be it.  Anything else has not been mentioned in any case discussing the “usual stipulations” and thus would be difficult to view as “usual.”