Some attorneys treat defending a deposition as an opportunity to be a jerk. Speaking objections, witness coaching and bogus instructions not to answer are all arrows in the quiver of the “Rambo” litigator. The Federal Rules of Civil Procedure, their state equivalents and the rules of professional conduct generally prohibit this conduct. The Federal Rules, for example, expressly authorize district courts to impose sanctions for this type of behavior. Indeed, since Rule 30 was amended in 1993 to add an express prohibition on this conduct, federal courts throughout the country have demonstrated a willingness to crack down on these tactics.
Less discussed is the responsibility of an attorney defending a deposition to affirmatively intervene to prevent their witness’ misconduct. Although there are relatively few cases that address the issue, they make clear that counsel has an obligation to take affirmative steps to protect the integrity of the deposition by reining in their own Rambo witnesses.
The Delaware Supreme Court’s recent decision in In re Shorenstein Hays-Nederlander Theatres Appeals, (Del. June 20, 2019) addresses the issue at length. There, a deponent engaged in a series of obstructionist and bad faith behaviors during her nine-hour deposition. Reviewing substantial portions of the transcript, the court concluded that her responses were “flagrantly evasive, nonresponsive and flippant” and that the deposition was “a colossal waste of time and resources.” The court sua sponte endorsed the lower court’s award of attorney fees against the client for the deponent’s conduct notwithstanding the fact that the sanction was not challenged on appeal. The court, however, did not limit its criticism to the witness; it chastised her counsel for failing to stop the misconduct. Analyzing counsel’s obligations under the Delaware Principles of Professionalism, the court held that “an attorney representing a client who engages in obstructionist behavior during the course of a deposition cannot simply be a spectator and do nothing.” It emphasized that defending counsel has an ethical obligation to ensure the integrity of the deposition and must affirmatively intervene to prevent their client’s bad-faith tactics.
The Delaware court analyzed counsel’s conduct through the lens of Delaware’s ethical rules, but the Federal Rules impose similar obligations. In Luangisa v. Interface Operations, (D. Nev. Dec. 5, 2011), the court evaluated the conduct of counsel in defending the deposition of his client It found that counsel engaged in a variety of obstructionist behavior by making speaking objections, questioning plaintiffs counsel on the record and instructing the client not to answer without any basis to do so. In many instances, the deponent, without specific prompting from his counsel, refused to answer questions without justification. The court sanctioned the client for both his and his counsel’s obstructionist behavior. It went further, however, chiding defense counsel for failing to intervene and stop his client’s misbehavior: “It is not enough for an attorney to refrain from instructing a client not to answer. In fulfilling his or her duties as an officer of the court an attorney must take some affirmative step to ensure the deponent complies with deposition rules.”
Perhaps the most detailed analysis of an attorney’s obligation under the Federal Rules to intervene is set out in GMAC Bank v. HTFC, 248 F.R.D. 182 (E.D. Pa. 2008). n HTFC, the defendant’s principal “sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity” throughout his nearly 12-hour deposition. In reviewing the deposition transcript the court noted that the deponent “used the word ‘f***’ and variants thereof no less than 73 times; to put this in perspective—in this commercial case, where plaintiff’s claim is for breach of contract and the defendant’s counterclaim is for tortious interference with contract—the word ‘contract’ and variants thereof were used only 14 times.” The court sanctioned the deponent for his behavior.
The court went on to analyze defending counsel’s obligation to intervene under Rules 30 and 37. Rule 37(a)(5)(A) authorizes a court to assess fees against a “deponent whose conduct necessitated the motion [to compel response], the party or , or both.” Rule 30(d)(2) authorizes the court to “impose an appropriate sanction–including the reasonable expenses and attorney’s fees incurred by any party–on a person who impedes, delays, or frustrates the fair examination of the deponent.” On their face, both rules appear to allow the imposition of fees against an attorney only when he or she “advises” a deponent to engage in obstructive behavior or otherwise acts affirmatively to “impede,” “delay,” or “frustrate” the deposition. The court in , however, held that failure to intervene in the face of severe and pervasive violations of the Federal Rules was the functional equivalent of advising the misconduct and actively interfering with the deposition. Unlike the courts in either or , the court in imposed sanctions against defending counsel that were separate from and in addition to those imposed on the client.
While the obligation to intervene is not precisely defined, attorneys falling short of their obligation have a certain I-know-it-when-I-see-it quality. Indeed, efforts to precisely define the scope of the obligation may be of only academic interest. The conduct at issue in these cases, particularly HTFC, is so extreme that the courts’ silence-as-endorsement approach seems necessary for the orderly administration of civil litigation.
The threat of sanctions and ethics violations aside, attorneys defending depositions have an obligation to prepare their witnesses for their depositions. Witnesses that provide the persistently evasive responses of the witness in Shorenstein or that tell opposing counsel to “shut the f*** up” like the witness in HTFC do not improve their cases. This behavior is likely to reach the jury and the ubiquity of video depositions only magnifies the negative impact of an obnoxious witness. As the court in Shorenstein suggests in closing, the best way to a defend a deposition is with a well-prepared witness. Indeed, if a witness is well prepared, a defending attorney should be able to sit back and watch with pride without temptation to engage in Rambo tactics or any need to prevent the witness from doing so.
Reprinted with permission from the July 2, 2019 issue of The Legal Intelligencer. © 2019
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