Maintain professionalism in depositions [MCLE]

Discovery

May 2017

By J. Randolph Evans and Shari Klevens

Although conducted in a comparatively informal setting, courts typically view depositions as akin to other in-court proceedings, particularly when it comes to professionalism. Thus, attorneys taking and defending depositions are required to conduct themselves as if they were in court speaking before a judge.

Unfortunately, attorneys do not always approach depositions with the same amount of respect and professionalism as they would for a matter before the court. Instead, attorneys can become aggressive in questioning or defending a witness and bicker with opposing counsel.

There are certainly strategic aspects to the manner in which an attorney conducts a deposition, as the facts elicited may shape the case and become part of the record. There is a line, however, between zealous advocacy and unprofessionalism.

A number of recent cases provide examples where the attorneys crossed that line by, for example, acting rudely toward opposing counsel or asserting improper objections to interrupt the flow of information. Consistent with the civility requirements emerging in many states, courts have increasingly demonstrated a willingness to sanction attorneys for improper deposition conduct.

As a result, attorneys should exercise increased discretion in depositions and approach the proceeding with the requisite formality and respect. The failure to do so can subject an attorney to sanctions and other serious disciplinary action, as demonstrated by one recent case decided by the U.S. District Court for the Northern District of California.

In Robinson v. Chefs' Warehouse, the court imposed monetary sanctions on an attorney and referred the attorney to the court's Standing Committee on Professional Conduct for disciplinary proceedings where the attorney, among other transgressions, repeatedly insulted opposing counsel, made improper objections, and "at one point, threw his hands in the air, paced, and stood in the corner with his back to the deposition." 3:15-cv-05421-RS (KAW) (N.D. Cal. Mar. 21, 2017).

While noting that bad faith was not required to impose sanctions, the court nonetheless found that the record was replete with examples of bad faith conduct. In addition, while the attorney attempted to deflect blame by accusing opposing counsel of discovery improprieties, the court stated that "no number of disputes or perceived professional misconduct justifie[d] [the attorney's] actions."

The attorney's conduct in Robinson may have been especially egregious, but it nonetheless highlights the fact that courts will not tolerate improper conduct during the course of a deposition.

In another recent case, the Supreme Court of Minnesota imposed a 60-day suspension from the practice of law and a two-year supervised probation on an attorney who asked a court-appointed parenting consultant in a deposition about past allegations of sex with minors, without any good-faith basis to make the accusation. The court found that the inappropriate question was part of a "pattern of misconduct" by the attorney thus justified disciplinary measures. In addition, the disciplinary board concluded that the attorney violated various provisions of the Minnesota Rules of Professional Conduct, including one rule prohibiting a lawyer from using "means that have no substantial purpose other than to embarrass ... or burden a third person."

While good sense and professionalism are enough to avoid these problems, below are some tips for deposition conduct that can help attorneys stay on the right side of the rules and the profession.

Familiarize Yourself with Standing Orders

Judges and courts often issue standing orders on proper deposition conduct. Such orders often provide rules on objections and instructions not to answer, scheduling of depositions, introduction of documents and exhibits, and requests for intervention by the court. Indeed, in Robinson, the court considered whether the parties had complied with the judge's standing order with respect to court intervention during the deposition.

Refrain from Asserting Speaking Objections

It is not just the aggressive questioning attorney who can be accused of improper conduct in a deposition. Generally, an attorney defending a witness in a deposition is permitted to object to questions that are improper for any number of reasons, such as that they are vague, ambiguous, or seek attorney-client privileged information. In many jurisdictions, however, it is improper to state objections in a way that coaches the deponent on how to answer certain questions or to provide information that essentially amounts to testimony being provided by the defending attorney.

Federal Rule of Civil Procedure 30(c)(2) provides that "an objection must be stated concisely in a nonargumentative and nonsuggestive manner." Thus, attorneys should avoid making speaking objections when defending depositions.

Instructing the Witness Not to Answer

Federal Rule of Civil Procedure 30(c)(2) provides that an attorney may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to terminate or limit the deposition.

However, even when a privilege is claimed, standing orders often require that the witness answer various questions relating to the assertion of the privilege, such as questions regarding the date of the communication and the persons present when the communication was made, unless such information is also privileged.

Thus, blanket orders to a witness not to answer questions that do not meet these requirements may subject the defending party or attorney to sanctions.

Sanctions

When an attorney believes that opposing counsel engaged in improper conduct when taking or defending a deposition, the attorney can file a motion with the court seeking the imposition of sanctions. Federal Rule of Civil Procedure 30(d)(2) states that "the court may impose an appropriate sanction - including the reasonable expenses and attorney's fees incurred by any party - on a party who impedes delays or frustrates the fair examination of the deponent."

Court have freedom to craft sanctions as are appropriate for the circumstances and to reflect the nature of the attorney's misconduct. For example, courts may order that a deposition be retaken or that certain claims and defenses are waived. By reviewing and following the court rules and standing orders in the jurisdiction regarding depositions, many missteps can be avoided.

Although attorneys may at times take a somewhat cavalier approach to depositions, such an approach can appear very unflattering when the transcript is subsequently read in court. To avoid the ire of the court, attorneys should exercise the appropriate professionalism and decorum when taking or defending depositions.

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