Overcoming Deposition Misbehavior: Go High When They Go Low
At first glance, the number of ways that a litigator might be subjected to sanctions for misbehavior during a pretrial deposition seems limitless. And that may be true. Human beings are good at finding new ways to commit errors.
However, broadly speaking, the reasons why deposition conduct is sanctionable are actually few in number. In some cases, counsel persists in a course of action that is not permitted by court rule. In others, counsel wastes everyone’s time with irrelevant theatrics. And, finally, counsel may be engaging in conduct that diminishes the reputation of the judicial system and legal profession itself.
It is precisely when animosity runs high that playing by the rules is vital.
And all cases of sanctionable deposition conduct manifest the same wrong: Each frustrates the policy objective, as framed by Rule 1 of the Federal Rules of Civil Procedure, that the court and the parties should “secure the just, speedy, and inexpensive determination of every action and proceeding.”
The cases listed below illustrate the point. These are six surefire ways for litigators to attract judicial disapproval of in-deposition behavior. Each one contains its own implied lesson for how to avoid a similar fate.
- Instructing the witness not to answer a question
The case of Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007), is well-known among litigators. The ruling is notable for the complete collapse of decorum during the deposition, for the multitude of procedural errors committed by the lawyers taking and defending the deposition, and for the author of the opinion castigating everyone involved, Seventh Circuit Chief Judge Frank H. Easterbrook.
We draw here one lesson among many that could be extracted from Judge Easterbrook’s opinion. A deposition witness should never be instructed not to answer a question for any reason other than the assertion of a privilege. Witness harassment is not a permissible reason to refuse to answer a question. Federal Rule of Civil Procedure 30 is clear on this point. When witness harassment is the concern, counsel for the witness may halt the deposition and apply for a protective order but must not instruct the witness to remain silent. According to Rule30(d)(1), counsel may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).
- Asserting “excessive” form objections
The behavior of one litigator during a pair of depositions got under the district court’s skin to such an extent that, after a product liability jury trial had concluded (in favor of the litigator’s client, Abbott Laboratories) and in the absence of any sanctions request from opposing counsel, the court sanctioned the litigator — for making improper objections — by ordering her to produce a training video on the topic of improper “form objections,” witness coaching, and excessive interruptions during depositions. In proceedings before the trial court, the litigator explained that her questions, comments, and objections during the deposition were an attempt to clarify technical subjects, ensure a clear record, and generally to “move things along” by encouraging a better question than the one that had been asked.
The trial court found that the litigator had (1) made 115 “form objections” following unobjectionable questions, (2) unnecessarily “quibbled” with word choices, (3) raised “hyper- technical truths,” and (4) invented “novel objections not grounded” in the law.
The unusual nature of the sanctions, and the fact that they were imposed on a distinguished litigator with over 30 years’ trial experience, attracted the attention of the American Association for Justice and American Board of Trial Advocates as amici on appeal. The Eighth Circuit, in Security National Bank v. Jones Day, 800 F.3d 936 (8th Cir. 2015), vacated the sanctions order without any significant examination of the litigator’s in-deposition conduct. Instead, the appellate court concluded that the trial court’s somewhat novel sanctions were imposed without adequate notice and were excessive under the circumstances. The Eighth Circuit wrote that it was willing to assume, without deciding, that sanctionable conduct might have occurred. Readers can decide for themselves whether the litigator’s in-deposition behavior was sanctionable. This seems to be a case where the litigator got on the trial court’s bad side for reasons that aren’t apparent from the record.
- Coaching the witness
A Florida attorney instructed a witness on how to answer questions via text messages during a remote deposition, and later denied the misconduct. The texts advised the witness what to say, how to answer, to avoid providing certain information, and to not give an absolute answer. According to the Florida Supreme Court opinion imposing discipline on the offending attorney, the attorney was caught by opposing counsel coaching the witness during the deposition, assured counsel he would stop sending texts, then continued to do so.
The Florida case is one of several that tested the legal profession during the COVID-19 pandemic, when the almost-overnight imperative of conducting depositions remotely, or with masked witnesses and counsel, created new opportunities for unethical attorneys to subvert the deposition process. This blog wrote extensively about those cases (here, and here) and summarized how successful litigators overcame those challenges.
- Insulting opposing counsel
An attorney who insisted on insulting opposing counsel during a deposition prompted a somewhat rare recommendation that sanctions should be imposed for conduct that is merely uncivil and unprofessional. As the legal profession continues its greater emphasis on civility, however, it seems likely that this case will not be the last of its kind. According to a report filed by the Illinois Attorney Registration and Disciplinary Commission, an Illinois attorney defended his client during a deposition by first directing the client not to answer certain questions, later insulting opposing counsel when she challenged his objections.
The attorney remarked that opposing counsel should “certify your own stupidity” after she asked to certify a deposition question for the trial court’s review, a question that the attorney had directed the witness not to answer. Later, after the attorney again directed the witness not to answer a question, prompting another request by opposing counsel to flag the question for the trial court’s review, the attorney threatened, “I’m going to get sanctions against your firm like you wouldn’t believe, b***h.”
For this behavior, the ARDC recommended a three-month suspension from the practice of law. We wrote about the hearing board recommendation at the time, as did the Legal Ethics Lawyer Blog.
The case of Carroll v. Jaques Admiralty Law Firm, 110 F.3d 290 (5th Cir. 1997), is similar. There, the offending attorney was fined $7,000 when, in his role as both litigant and deponent, he refused to answer deposition questions and verbally abused plaintiff’s counsel, calling him an “idiot,” “ass,” and “slimy son-of-a-b***h,” and saying he “ought to be punched in the goddamn nose.”
- Failing to control an uncivil, profane client witness
The case of GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008), stands out among “deposition behavior” cases for the veritable gusher of profanity and invective that flowed from the deposition witness. And for the district court’s conclusion that it was necessary to publish much of the witness’s invective in the federal reports. According to one legal scholar’s account, the witness uttered the f-word 73 times during the deposition, while the word “contract” crossed his lips on just 14 occasions. (The case was, alas, a breach of contract action.) The witness even made his own objections.
The trial court concluded that the witness’s attorney had not done enough to curb his client’s obstructive and regrettable behavior. The deposition lasted 12 hours over two days, “much of which was an unmitigated waste of time and resources,” the court lamented. The court found that the attorney’s behavior amounted to little more than “mildly worded” requests for his client to behave, but those efforts were so weak that they had the effect of “emboldening [the client] to further flout the procedural rules” and interfere with the deposition.
“An attorney faced with such a client cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down,” the court said.
- Using profanity repeatedly during a deposition
As GMAC Bank teaches, profanity isn’t acceptable from deposition witnesses. Attorneys are likewise forbidden to lace their in-deposition language with vulgar expletives. In Saldana v. Kmart Corp., 84 F. Supp. 2d 629 (D.V.I. 1999), the salty word of choice was again the f-word. Imposing sanctions, the district court ruefully described himself as a “kindergarten cop” for having to police the behavior in this case.
The attorney’s language (and other uncivil behavior) “demeans the entire judicial process, the Court, the Bar in general, other counsel in particular, and even [the offending attorney] herself,” the court wrote. “That she used this gutter language in formal, court-sanctioned proceedings in front of members of the public who were testifying under oath as deposition witnesses is especially appalling.”
Difficult Moments Call for Heightened Professionalism
Certainly, these cases describe a very small fraction of the legal profession, a fraction that has diminished and hopefully will continue to shrink in the coming years. Until then, what can be done by litigators faced with uncivil, or obstructive, or merely unlawful behavior during a deposition? Perhaps the best answer was given by Judge Easterbrook in Redwood v. Dobson:
“It is precisely when animosity runs high that playing by the rules is vital. Rules of legal procedure are designed to defuse, or at least channel into set forms, the heated feelings that accompany much litigation. Because depositions take place in law offices rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control.”
Yes indeed. When opposing counsel bends the rules and tests the patience of everyone involved, that’s the moment for everyone else to model the highest standards of the profession.