Here’s a cautionary tale about the line between vigorous advocacy and obstructionist conduct during discovery, and particularly at depositions.
A federal district court judge has administered an embarrassing bench-slap to a lawyer from a top-tier firm, requiring her to make a video about proper discovery procedures and to provide it to her firm’s litigators. The lawyer came under fire for excessive and baseless objections at depositions, which the judge found coached the witnesses and encouraged them to bicker unnecessarily with the examiner.
The court justified its sanction in a lengthy opinion decrying the state of modern litigation in general:
Obstructionist litigators, like Ivan Pavlov’s dogs, salivate when they see discovery requests and are conditioned to unleash their treasure chest of obstructive weaponry. Unlike Pavlov’s dogs, their rewards are not food but successfully blocking or impeding the flow of discoverable information.
Of course, refraining from unfair discovery conduct is an ethics mandate under various state versions of Rule 4.4 of the Model Rules of Professional Conduct, which deals with “Respect for Rights of Third Persons,” and essentially bars embarrassing, harassing or burdening a third person in the course of representing a client. The ethics rule is echoed in Federal Civil Rule 30(d)(2), which allows a court to impose “appropriate” sanctions on a person who impedes or frustrates the fair examination of a deposition witness. The court applied that rule here.
The judge noted that in one deposition, the lawyer objected to the form of the question on 50% of the transcript pages, and the opinion quotes many examples where the objecting lawyer appears – in the court’s view — to coach the witness into “quibbling” and being obstreperous:
Q. Is there—do you believe that there’s—if there’s any kind of a correlation that could be drawn from OAL environmental samples to the quality of the finished product?
COUNSEL: Objection; vague and ambiguous.
A. That would be speculation.
Q. Well, if there were high numbers of OAL, Eb samples in the factory, wouldn’t that be a cause for concern about the microbiological quality of the finished product?
COUNSEL: Object to the form of the question. It’s a hypothetical; lacks facts.
A. Yeah, those are hypotheticals. . . . Q. Would that be a concern of yours?
COUNSEL: Same objection.
A. Not going to answer.
Q. You’re not going to answer?
A. Yeah, I mean, it’s speculation. It would be guessing.
COUNSEL: You don’t have to guess.
The court found it “inconceivable” that the witnesses would request clarification and resist answering so frequently were they not coached by counsel’s objections. The court also criticized objections that it said suggested how the witnesses should answer. The sanctionable conduct intentionally frustrated the free flow of the depositions that counsel defended, said the court. The court noted that many litigators are trained to make “obstructionist objections,” and in fact, the sanctioned lawyer tried to justify her trial objections by telling the judge “that was my training.” All this led the court to impose its unusual sanction. How you read this opinion may depend on what side of the deposition table you’re sitting on. But it can remind us that we need to be careful about how we use our training as litigation gladiators.