LEGAL MYTHBREAKERS By: Brad Fraser
Leitner Williams Dooley Napolitan PLLC
WHY DID THE LAWYER CROSS THE ROAD?
TO CERTIFY OR NOT TO CERTIFY? THAT IS THE QUESTION. I like songs that ask questions. Are You Experienced? Does Your Mother Know? Is She Really Goin’ Out with Him? How Deep is Your Love? Should I Stay or Should I Go? What’s Love Got to Do with It? How Will I Know? Who Let the Dogs Out? What Does the Fox Say? Okay, that is obviously enough. “Certify the Question”: Depending on whether you are in state court or federal court, in a deposition or some other posture of litigation, the phrase “certify the question” can have different meanings. “Certifying the Question” in a deposition The first time I heard the phrase “certify the question” as a lawyer, I was a newly minted lawyer sitting in on a deposition. When the witness refused to answer the question, the lawyer told the reporter, “I would like to ‘certify the question’”. The unanswered question was repeated. On the transcript was the notation and location of the “certified question.” I was quite impressed. When I asked what “certifying the question” meant, I was told an attorney had to certify a question to request a court to compel the witness to answer. The Tennessee Rules of Civil Procedure do expressly state that a “deponent may be instructed not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit examination.” 1 While the latter portion of that citation is further explained the following section governing a Motion to Terminate or Limit Examination,2 it does not address the procedure for clarifying on the record the question or questions for which no response is provided. Perhaps certifying the specific question makes it easier to locate. Also, this practice can require any objections to be made clearly on the record, if you choose to take it up with the court. Similarly, in Federal Court, the Federal Rules of Civil Procedure provide: “Evidence objected to shall be taken subject to the objections.”3 Additionally, in the Eastern District of Tennessee, there is a standing “Order Governing Depositions” entered in every civil lawsuit. This standing Order requires that “[c]ounsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the court.” As such, at least in the Eastern District, any question certified to be addressed to the court for lack of a response should be limited to a specific privilege, or an area addressed by prior order of the Court. Certification of a question by a Federal Court to the Tennessee Supreme Court Rule 23 of the Rules of the Tennessee Supreme Court provides that the Supreme Court may, at its discretion, answer questions of law certified to it by the United States Supreme Court, or any U.S. Court
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of Appeals. The Rule also allows certification when a District or Bankruptcy Court situated in Tennessee certifies such a question.4 “[C]ertification of novel or unsettled questions of state law for authoritative answers by a State’s highest court . . . may save time, energy, and resources and help build a cooperative judicial federalism.” 5, “A federal court faced with a novel or unsettled issue of state law may certify a question to the highest court of the state for resolution of the issue.” 6 Tennessee Supreme Court Rule 23 provides that court discretion to “answer questions of Tennessee law certified by any federal court when there are questions of law [in Tennessee] which will be determinative of the cause” and when “there is no controlling precedent in the decisions of the Supreme Court of Tennessee.” 7 “[A]nswering certified questions from federal courts promotes judicial efficiency and comity and protects [Tennessee’s] sovereignty.” 8 In the Order issued by the appropriate federal court, the Tennessee Supreme Court requires the following information be provided, including the formal name of the case and the parties, a statement of the facts, contact information for all counsel and a designation of the “moving party.”9 Additionally, the federal court is to provide instructions to the clerk, such as to serve copies of the certification order upon counsel for the parties and to file the certification order under the seal of the certifying court with the Supreme Court of Tennessee, along with appropriate proof of service. Of course, the Tennessee Supreme Court may choose to decline such certification. 10 A common rationale for declining such certification is due to the procedural posture of the case. 11 So, there you have it. Most of you are probably asking, “What Have I Done to Deserve This?”
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DICTA
Tenn. R. Civ. Pro 30.03. Tenn. R. Civ. Pro. 30.04 Fed .R. Civ. Pro. 30 (c) See Tenn. Sup. Ct. R. 23, § 1. American Booksellers Foundation for Free Expression v. Strickland, 560 F.3d 443, 446 (6th Cir. 2009) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997)). State Auto. Mut. Ins. Co. v. Frazier’s Flooring, Inc., No. 3:08-CV-178, 2009 WL 693142, at*7 (E.D. Tenn. Mar. 13, 2009). Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 803 (Tenn. 2015) (quoting Tenn. Sup. Ct. R. 23, § 1). McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 689 (Tenn. 2020) (quoting Yardley, 470 S.W.3d at 803). Tenn. Sup. Ct. R. 23, § 3 (A)-(E). See Tenn. Sup. Ct. R. 23, §9; Seals v. H & F, Inc., 301 S.W.3d 237, 241 n.3 (Tenn. 2010).
February 2022
