In litigation, depositions can be a valuable way to obtain evidence and learn the facts of the case in preparation for trial. In addition, in limited circumstances, deposition testimony may be used at trial in lieu of a live witness.
Courts in many states treat depositions the same way as they do other court proceedings. Thus, court rules in those states require attorneys taking and defending depositions to conduct themselves as they would if the deposition were taking place in court before the judge.
Unfortunately, that edict is not always followed.
Because of the importance of depositions in shaping the case, attorneys can be tempted to be more aggressive than in other aspects of an action as they attempt to get in or keep out certain testimony for the record. Notwithstanding a growing emphasis on professionalism in many courts across the country, some attorneys continue to behave badly in depositions, either by asking improper questions or by asserting improper objections.
Recent cases are replete with examples of attorneys engaged in improper deposition conduct, such as acting rudely toward opposing counsel or asserting improper objections to interrupt the flow of information. This type of conduct can be intentional—interrupting and intimidating opposing counsel—or unintentional.
Many courts have had enough. As a result, such behavior—whether intentional or not—has become unacceptable and even subject to sanctions.
With the affirmative civility requirements emerging in many states bringing more scrutiny by trial judges (and even some appellate courts), attorneys should re-examine their deposition conduct and err in favor of conducting themselves as they would in court. That means that both sides must cooperate with and be courteous to each other and to the deponents.
The failure to do so can subject an attorney to sanctions, and even lead to serious disciplinary action. In fact, many judges now expect opposing counsel to bring such conduct to the attention of the court so that problems can be resolved long before serious discovery disputes result in a trial delay.
One recent case illustrates the price of deposition misconduct. In that case, the highest court in Minnesota ruled that an attorney's deposition question to a deponent constituted serious misconduct.
On Nov. 25, 2015, 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, and it acted correspondingly.
In addition to asking the inappropriate question, the attorney failed to submit records to a court within a 30-day deadline, which resulted in delay to the court system, failed to provide a client with her complete files for six months after being discharged, and included material from other clients when the file was shipped to the client. The court ruled that considered together, the attorney's rules violations were serious and weighty.
The attorney testified during an evidentiary hearing that, prior to the deposition, he recalled the parenting consultant had been accused of sexual contact with minors. However, the attorney offered no evidence to support that recollection. The disciplinary board consequently found that the attorney's testimony was not credible, that the deposition question "appeared to be intended to embarrass and humiliate" the parenting consultant, and that the question was asked without a good-faith basis.
The disciplinary board concluded that the attorney had violated Minn. R. Prof. Conduct 4.4(a) and 8.4(d). Minn. R. Prof. Conduct 4.4(a) provides in relevant part that, "in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass … or burden a third person," while Minn. R. Prof. Conduct 8.4(d) provides in relevant part that "it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice."
While good sense and professionalism are enough to avoid this kind of problem, below are some tips for deposition conduct that can help attorneys stay on the right side of the rules and the profession when participating in depositions.
Review standing orders
Judges and courts often issue standing orders on proper deposition conduct. Review the standing orders of the judge or court for instruction on what constitutes improper deposition conduct. Such orders often provide rules on objections and instructions not to answer, scheduling, introduction of documents and exhibits, and requests for intervention by the court.
Speaking objections are improper
An attorney defending a witness in a deposition generally has the right to object to questions that are improper: for example, because they are vague, ambiguous, misleading or seek attorney-client privileged information. However, it is improper in most jurisdictions 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 Rule 30(c)(2) provides that "an objection must be stated concisely in a nonargumentative and nonsuggestive manner." Thus, a speaking objection—an objection that proceeds beyond what is necessary to give the grounds on which the objection is based—is improper in depositions in federal courts.
Instructions not to answer
Federal Rule of Civil Procedure Rule 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 instruct that the witness should nevertheless answer questions relevant to the existence, extent or waiver of the privilege, such as the date of the communication, who made the statement, to whom and in whose presence the statement was made, other persons to whom the contents of the statement have been disclosed, and the general subject matter of the statement, unless such information itself is privileged.
Sanctions for improper deposition conduct
In the event of improper deposition conduct, an attorney taking or defending a deposition has some recourse. First, the attorney can file a motion with the court, asking the court to issue sanctions for the misbehaving attorney. Federal Rule of Civil Procedure Rule 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."
When attorneys have engaged in improper deposition conduct, courts also can impose other sanctions, such as ordering that a deposition be retaken or that certain claims and defenses by waived. By reviewing and following the court rules and standing orders in the jurisdiction regarding depositions, many missteps can be avoided.
As a general rule, attorneys taking and defending depositions should be mindful to behave as if the judge is in the room observing the deposition because when they read the transcript it will be as if they are.
As published by American Lawyer Media