Professionalism
in Depositions: The Sound of Silence
E. Phelps Gay
People talking
without speaking;
People hearing
without listening.
--Paul Simon
The Sound of Silence
I.
Introduction
In recent years courts and commentators have decried the
unprofessional behavior sometimes engaged in by attorneys during depositions.[1] Aggressive, obstructive, and even hostile
conduct toward a deponent or opposing counsel, once considered by some to be
good lawyering, are regarded as increasingly unacceptable. Judges, who at one time simply shook their
heads while reading depositions in the privacy of their chambers, have become
more outspoken in denouncing deposition misconduct and less hesitant to
exercise their “inherent power” to control it.[2] Codes and creeds of professionalism now
exhort attorneys to conduct themselves with dignity when taking and defending
depositions.[3] In 1993, the Federal Rules of Civil Procedure
were amended to require that objections during a deposition be stated
“concisely and in a non-argumentative and non-suggestive manner.”[4] In an effort to rein in obnoxious deposition
conduct, many states have enacted stringent new procedural rules.[5] Most strikingly, one state has drawn the
curtain on deposition misconduct by enacting a rule which specifies that only
three brief objections are permissible, imposing sanctions or waivers for any
further comment.[6]
This article offers a survey of judicial decisions and a
discussion of legislative initiatives aimed at “cleaning up” inappropriate
deposition conduct. It suggests that the
recent trend toward less obstructive and more civil behavior during depositions
represents a step forward for the legal profession. As such, these judicial and
legislative efforts should be continued and encouraged. Civility and cooperation can coexist with
vigorous, even “zealous” representation of clients.[7] Experience also suggests that when
unnecessary objections and attorney colloquy are taken away, and a deposition
focuses on the substance of the testimony, little is lost and much is gained.
II.
Competitive
Obstructionism
During the litigation explosion of
the 1980's and 1990's, many lawyers developed the notion that “anything goes”
when taking a deposition. Representing a
client, a litigator could and should do everything possible to protect that
client’s interest. Then as now, most
cases did not go to trial. Therefore, depositions provided the forum where
evidence was fought for and obtained, the credibility and stamina of witnesses
were tested, the fortitude of opposing counsel measured, and cases effectively
won or lost. With no judge presiding,
litigators felt emboldened (perhaps even obligated) to engage in obstructive or
abusive conduct, displaying a level of rancor toward witnesses and opposing
counsel that they would never exhibit in the presence of a judicial
officer. A report by the Federal Bar
Council Committee on Second Circuit Courts described the then-current method of
taking and defending depositions as “too often an exercise in competitive
obstructionism.”[8] It concluded that depositions had become
“theaters for posturing and maneuvering rather than efficient vehicles for the
discovery of relevant facts or the perpetuation of testimony.”[9]
From a practical standpoint, this obstructionism took the form of: (1) objecting frequently to harass opposing counsel or interrupt the flow of the examination; (2) lodging “speaking objections,” designed to re-characterize testimony or signal the desired answer to a witness; (3) interjecting comments or questions such as “if you know,” “don’t speculate,” or “did you understand the question?” ostensibly to “help” the witness; (4) orating at length to “testify” for the witness; (5) staging off-the-record conferences with the witness to discuss a pending question and formulate an answer; (6) instructing the witness not to answer a question; or simply (7) rude, offensive behavior, designed to impress upon the client or opposing counsel that the attorney is a “hardball” litigator who cannot be intimidated and who stands ready to protect the client’s interests at any cost.
Examples
abound. One of the most well known
appears in Paramount Communications Inc. v. QVC Network, Inc.,[10]
where the Delaware Supreme Court felt compelled to reproduce this exchange
between counsel:
Q. . . . Do you have any idea why Mr. Oresman
was calling that material to your attention?
MR. JAMAIL: Don’t answer that. How would he know what was going on in Mr. Oresman’s mind? Don’t answer it. Go on to your next question.
MR. JOHNSTON:
No, Joe--
MR. JAMAIL:
He’s not going to answer that.
Certify it. I’m going to shut it
down if you don’t go to your next question.
MR. JOHNSTON:
No. Joe, Joe–
MR. JAMAIL: Don’t “Joe” me, asshole. You can ask some questions, but get off
that. You could gag a maggot off a meat
wagon. Now, we’ve helped you every way
we can.[11]
Reviewing this transcript, the court found that
counsel had directed the witness not to answer questions, coached the witness
by objecting in a manner suggesting an answer, and otherwise behaved in an
“extraordinarily rude, uncivil, and vulgar” manner.[12] Had the attorney been admitted to practice in
Delaware, he would have been severely sanctioned.[13]
Other examples of egregious deposition conduct are not
hard to find. In Carroll v. Jacques,[14]
a legal malpractice case, the defendant attorney refused to answer questions
and verbally abused plaintiff’s counsel, calling him an “idiot,”[15]
an “ass,”[16]
and a “slimy son-of-a-bitch,”[17]
suggesting finally that he “ought to be punched in the goddamn nose.”[18] For disrupting the litigation process and
acting in bad faith, the trial court imposed a sanction of $7,000. The Fifth Circuit Court of Appeals affirmed,
noting that counsel’s conduct “degrades the legal profession and mocks the
search for truth that is at the heart of the litigation process.”[19]
Similarly, in a New York personal injury case, an
attorney-plaintiff refused to answer relevant questions and launched the
following personal attack on defense counsel:
You’re so scummy and so slimy and
such a perversion of ethics or decency because you’re such a scared little man,
you’re so insecure and so frightened and the only way you can impress your
client is by being nasty, mean-spirited and ugly little man, and that’s what
you are. That’s the kind of prostitution
you are in.[20]
The court found it “difficult to find one among the
217 pages of the deposition which does not contain willful evasion, gratuitous
insult, argumentative response, or patent rudeness from the plaintiff.”[21] The plaintiff’s behavior was “so lacking in
professionalism and civility” that the ultimate sanction of dismissal proved to
be the only appropriate remedy.[22]
Significantly,
the court drew no distinction between deposition and courtroom conduct. “Although the deposition was not held in a
courtroom, and there was no judge present, it was, nonetheless, part of a
judicial proceeding in the Supreme Court.”[23] Thus, “[a] lawyer’s duty to refrain from
uncivil and abusive behavior is not diminished because the site of the
proceeding is a deposition room, or law office, rather than a courtroom.”[24]
Incivility and gender bias combined to justify
sanctions in Principe v. Assay Partners.[25] During a deposition, counsel directed the
following comments to an attorney for one of the defendants:
“I don’t have to talk to you, little lady;”
“Tell that little mouse over there to pipe down;”
“What do you know, young girl;”
“Be quiet, little girl;”
“Go away, little girl.”[26]
Characterizing such language as paradigmatic rudeness, the
court observed that “[a]n attorney who exhibits a lack of civility, good
manners and common courtesy tarnishes the image of the legal profession.”[27] Conduct projecting “‘offensive and invidious
discriminatory distinctions . . . based on race . . . or gender . . . is
especially offensive.’”[28] Where counsel engages in obstructionist
tactics, uses insulting language, or otherwise fails to conform to accepted
notions of conduct, sanctions are warranted.
The offending attorney thus was ordered to make a contribution to the
Client Security Fund.[29]
Depositions in R.E. Linder Steel Erection Co. v. U.S. Fire
Insurance Co.[30]
were “contaminated from start to finish with interrupted questions, ad
hominem comments, and argumentative colloquy, sometimes running on for
pages.”[31] One party’s request that a judicial officer
preside at further depositions, although a good solution in theory, was “simply
impractical, in view of the priorities and time pressures facing the judicial
officers of this District.”[32] Fashioning what it hoped might be a workable
alternative, the court ordered that counsel pay liquidated attorney’s fees of
$5.00 for each interrupted question.
Counsel would pay another $5.00 for each line of the transcript
containing argument with counsel, ad
hominem comments, or other extraneous re
Sanctions were imposed on plaintiff’s counsel in Unique
Concepts, Inc. v. Brown[34]
for similarly “contentious, abusive, obstructive, scurrilous, and insulting
conduct in a Court ordered deposition.”[35] Reviewing the plaintiff’s deposition, the
court found it “hard to find a page on which Rosen does not intrude on the
examination with a speech, a question to the examiner, or an attempt to engage
in colloquy distracting to the examiner.”[36] Among the attorney’s re
“You are being an obnoxious little twit. Keep your mouth shut.”
“You are a very rude and impertinent young man.”[37]
Under the circumstances the court characterized the
deposition as “an exercise in futility.”[38] Pursuant to 28 U.S.C. §1927 and its inherent
power to supervise and control its proceedings, the court ordered plaintiff to
be re-deposed at the courthouse and imposed a fine on plaintiff’s counsel “without reimbursement
from his client.”[39] Any repetition of the “pervasive misconduct”
that plagued the proceedings would be treated as contempt of court.[40]
In an Illinois antitrust action, an attorney interposed
constant objections during the deposition of his client with frequent
instructions not to answer. After
sanctions were imposed for “deliberate frustration”[41]
of discovery efforts, the deposition was resumed, but counsel “contumaciously
disobeyed the court’s order by interfering with the questions posed by
defendants’ counsel, and by directing the doctor not to respond to certain
questions already approved by the court.”[42] Relations between counsel degenerated to such
a degree that the witness’s attorney refused to let opposing counsel use the
office telephone to call the court in order to resolve the dispute, as shown in
this exchange:
MR.
WALKER: I would caution you not to use
any telephones in this office unless you are invited to do so, counsel.
MR.
STANKO: You’re telling me I can’t use your
telephones?
MR.
WALKER: You can write your threatening
letters to me. But, you step outside
this room and touch the telephone, and I’ll take care of that in the way one
does who has possessory rights.[43]
As a result of this vexatious conduct, plaintiff’s case was
dismissed with prejudice, and the attorney was cited for civil contempt. Disciplinary proceedings ensued, resulting in
counsel’s suspension from federal practice for a period of one year.[44]
It is important to recognize that these reported cases did
not represent isolated or extreme instances of inappropriate deposition
conduct. On the contrary, as noted by
the Federal Bar Council Committee on Second Circuit Courts, obstructive
behavior during depositions was fairly common.
To many attorneys, this kind of behavior was a routine and expected part
of the practice of law. However, concern
about the effect of this “toxic advocacy”[45]
on the profession and the public continued to grow. In 1993, the tide began to turn with two
major developments: (1) an opinion
rendered by a federal judge in Pennsylvania, and (2) the enactment of Rule 30
amendments to the Federal Rules of Civil Procedure.
III.
The
Judicial Backlash: Hall v. Clifton Precision
The most influential decision on deposition misconduct was
written in 1993 by Judge
At the outset of a deposition in Hall,
plaintiff’s counsel had advised his client that “‘at any time if you want to
stop and talk to me, all you have to do is indicate that to me.’”[47] Defense counsel replied that, “‘[t]his
witness is here to give testimony, to be answering my questions, and not to
have conferences with counsel in order to aid him in developing his responses
to my questions.’”[48]
Judge Gawthrop quickly disposed of
the position taken by plaintiff’s counsel.
The purpose of a deposition “is to find out what a witness saw, heard,
or did — what the witness thinks.”[49] It is “a question-and-answer conversation
between the deposing lawyer and the witness.”[50] It is not the role of the witness’s lawyer
“to act as an intermediary, interpreting questions, deciding which questions
the witness should answer, and helping the witness to formulate answers.”[51] The witness comes to testify, “not to indulge
in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s
words to mold a legally convenient record.
It is the witness –- not the lawyer -– who is the witness.”[52]
Although a lawyer might frame the facts in a manner favorable
to the client, he or she may not be “creative” with the facts. The lawyer “must accept the facts as they
develop.”[53] Therefore, the “lawyer and client do not have
an absolute right to confer” during the course of a deposition.[54]
Judge Gawthrop noted that, according to Rule 30(c) of the
Federal Rules of Civil Procedure, examination and cross-examination of
witnesses during depositions “are to be conducted under the same testimonial
rules as are trials.”[55] At trial the lawyer and witness are not
permitted to “confer at their pleasure” once testimony is underway.[56] During a deposition, “the fact that there is
no judge in the room to prevent private conferences does not mean that such
conferences should or may occur.”[57] Private conferences “tend, at the very least,
to give the appearance of obstructing the truth.”[58]
Judge Gawthrop also did not distinguish between conferences
initiated by the witness and those initiated by the lawyer. “To allow private conferences initiated by
the witness would be to allow the witness to listen to the question, ask his or
her lawyer for the answer, and then parrot the lawyer’s response.”[59] If the witness does not understand the
question, he or she should ask the deposing
lawyer (not his own) to clarify or explain it.[60]
Venturing into more controversial
territory, Judge Gawthrop extended his ruling against private conferences to
deposition recesses. “Once the
deposition has begun, the preparation period is over . . . .”[61] All private conferences are barred. The “fortuitous occurrence of a coffee break,
lunch break, or evening recess is no reason to change the rules.”[62]
On the second issue, Judge Gawthrop employed the same
reasoning. When a document is presented
to a witness, the witness should answer questions about it. The witness’s lawyer should be shown a copy
of the document, but “there is no valid reason” why the lawyer and witness
should confer about it before the witness answers a question.[63]
Judge Gawthrop acknowledged an
exception to the rule against private conferences when the purpose is to
ascertain the propriety of a privilege.
Assertion of a privilege is an important
objection, justifying a conference.
However, when a conference occurs, the attorney should note that fact on
the record and disclose the subject of the conference, as well as the decision
to assert the privilege or not.[64]
Judge Gawthrop then turned his
attention to witness coaching through suggestive objections. He cited a then-proposed (and subsequently
enacted) amendment to Rule 30(d) of the Federal Rules of Civil Procedure
requiring that objections be “stated concisely and in a non-argumentative and
non-suggestive manner.”[65] Most objections, such as those based on
relevance or materiality, are preserved for trial and need not be made. Other objections, such as those made to
disrupt testimonial rhythm or to offer “strategic interruptions, suggestions,
statements, and arguments of counsel,” undermine the purpose of a deposition,
which is to find the truth.[66]
Given the importance of depositions in modern litigation —
“the factual battleground where the vast majority of litigation actually takes
place”[67]
— Judge Gawthrop recognized that this critical discovery device should not be
abused. To that end he issued this
admonition:
Counsel should never forget that even though the
deposition may be taking place far from a real courtroom, with no black-robed
overseer peering down upon them, as long as the deposition is conducted under
the caption of this court . . . counsel
are operating as officers of this court.
They should comport themselves accordingly; should they be tempted to
stray, they should remember that this judge is but a phone call away.[68]
Judge Gawthrop concluded his opinion with an Order
containing the following guidelines:
1. At the
beginning of the deposition, deposing counsel shall instruct the witness to ask
deposing counsel, rather than the witness’s own counsel, for clarifications,
definitions, or explanations of any words, questions, or documents presented
during the course of the deposition. The
witness shall abide by these instructions.
2. All
objections, except those which would be waived if not made at the deposition
under Federal Rules of Civil Procedure 32(d)(3)(B), and those necessary to
assert a privilege, to enforce a limitation on evidence directed by the court,
or to present a motion pursuant to Federal Rules of Civil Procedure 30(d),
shall be preserved. Therefore, those
objections need not and shall not be made during the course of depositions.
3. Counsel
shall not direct or request that a witness not answer a question, unless that
counsel has objected to the question on the ground that the answer is protected
by a privilege or a limitation on evidence directed by the court.
4. Counsel
shall not make objections or statements which might suggest an answer to a
witness. Counsels’ statements when
making objections should be succinct and verbally economical, stating the basis
of the objection and nothing more.
5. Counsel and
their witness-clients shall not engage in private, off-the-record conferences
during depositions or during breaks or recesses, except for the purpose of
deciding whether to assert a privilege.
6. Any
conferences which occur pursuant to, or in violation of, guideline (5) are
proper subject for inquiry by deposing counsel to ascertain whether there has
been any witness-coaching and, if so, what.
7. Any
conferences which occur pursuant to, or in violation of, guideline (5) shall be
noted on the record by the counsel who participated in the conference. The purpose and outcome of the conference
shall also be noted on the record.
8. Deposing
counsel shall provide to the witness’s counsel a copy of all documents shown to
the witness during the deposition. The
copies shall be provided either before the deposition begins or
contemporaneously with the showing of each document to the witness. The witness and the witness’s counsel do not
have the right to discuss documents privately before the witness answers questions
about them.
9. Depositions
shall otherwise be conducted in compliance with the Opinion which accompanies
this Order.[69]
The three major limitations imposed by Judge Gawthrop — no
consultation, no coaching, and (generally) no instruction not to answer — have
drawn widespread comment and have generated substantial, though not unanimous,
support. In some respects, particularly
the prohibition on lawyer-witness conferences during recess, the Hall
guidelines may be debatable. Several
courts and commentators have criticized this aspect of Hall as going too
far.[70] But events have shown that in Hall Judge Gawthrop touched a
nerve. He sparked a debate on
appropriate deposition conduct which continues to this day. It is no exaggeration to suggest that the
movement to reform deposition conduct, which has gathered steam over the past
decade, owes much to the boldness of Judge Gawthrop’s opinion.
IV.
Hall’s Wake
That Hall signaled
a sea-change in judicial willingness to control deposition conduct became
immediately apparent. Within a few
months, an Iowa magistrate expressed his own exasperation with “Rambo
litigation.” In Van Pilsum v. Iowa
State University of Science & Technology,[71]
counsel for both parties disrupted plaintiff’s deposition with extensive
colloquy. Plaintiff’s counsel repeatedly
restated defense counsel’s questions in order to “clarify” them. These objections were “thinly veiled
instructions to the witness,” who would then incorporate her attorney’s
language into her answer.[72] There were also ad hominem
attacks on opposing counsel’s experience and ethics. Over the 167 pages of transcript, the court
could find only four segments where five or more pages occurred without
attorney interruption. Much of the transcript
involved “discussion, argument, bickering, haranguing, and general interference”
by counsel.[73] The court reporter frequently had to re-read
a question because of the lengthy interval between a question and the witness’s
opportunity to answer.
Although this conduct “may prove effective out of the
presence of the court, and may be impressive to clients as well as
ego-gratifying to those who practice it, [it] will not be tolerated by this
court.”[74] The court ruled that all further depositions
would take place in the federal courthouse in the presence of a discovery
master. Acrimony between counsel
“necessitates the provision of day care for counsel who, like small children,
cannot get along and require adult supervision.”[75]
In a Missouri employment discrimination case, attorneys for
plaintiff frequently interrupted the interrogation of their client,
“interpreting” questions, making suggestive objections, and instructing the
client not to answer. For such vexatious
conduct carried out in bad faith, they were ordered to pay attorneys’ fees and to
comply with deposition guidelines similar to those issued by Judge Gawthrop in Hall.[76]
Also of interest is Damaj v. Farmers Insurance Co.,[77]
where an Oklahoma magistrate, ruling on a motion to order counsel to “cease
obstructionist tactics,” largely adopted the Hall guidelines. Defense counsel interposed numerous speaking
objections which either suggested the response to the witness or were
unnecessarily disruptive. In a
deposition consisting of 102 pages, objections were made on sixty-four of them. The court characterized the deposition as “primarily
conversation and argument between counsel, as opposed to a question and answer
session between the deposing attorney and the witness.”[78] Citing Hall with approval, the court
expressed concern that frequent and suggestive objections would frustrate the
objective of taking depositions. Such
objections “tend to obscure or alter the facts of the case and consequently
frustrate the entire civil justice system’s attempt to find the truth.”[79]
The court’s order in Damaj
was interesting in two respects. First,
it provided that since most objections, other than those waived if not made
during the deposition, are specifically preserved by the Federal Rules, “those
objections need not and shall not be made during the course of depositions.”[80] Second, the court ruled that “[i]f the form
of the question is objectionable, counsel should say nothing other than ‘object
to the form of the question.’”[81]
More recently, in a strongly worded
“message” opinion, the South Carolina Supreme Court advised its Bar members that
obstructive deposition conduct would no longer be tolerated.[82] Under a new rule modeled on the Hall
guidelines, at the outset of a deposition, counsel “shall instruct the witness
to ask deposing counsel, rather than the witness’ own counsel, for clarifications,
definitions, or explanations of any words, questions or documents presented
during the course of the deposition.”[83] Counsel “shall not make objections or
statements which might suggest an answer to a witness.”[84] Furthermore, counsel and the witness “shall
not engage in private, off-the-record conferences during depositions or during
breaks or recesses regarding the substance of the testimony . . . except for
the purpose of deciding whether to assert a privilege or to make an objection
or to move for a protective order.”[85] Conferences that violate the rule are
properly subject to inquiry by opposing counsel “to ascertain whether there has
been any witness coaching.”[86]
In addition, conferences called to
calm down a nervous client, interrupt the flow of a deposition, or help the
witness frame an answer are improper and warrant sanctions. Interjections such as “if you remember” and
“don’t speculate” are improper because they suggest how to answer the question.[87] Such admonitions should be made before the
deposition begins. It is also
inappropriate to instruct a witness not to answer a question on the basis that
the question has been “asked and answered.”[88] If repetitive questioning becomes harassment,
a motion may be filed with the court.[89]
The South Carolina court noted that
in depositions attorneys “face great temptation to cross the limits of
acceptable behavior in order to win the case at the expense of their ethical
responsibilities to the court and their fellow attorneys.”[90] But the discovery is intended to “‘ensure
that lawsuits are decided by what the facts reveal, not by what facts are
concealed.’”[91] Claiming to be zealous advocates will provide
no sanctuary for attorneys who abuse the discovery process. Judges must use their full authority to preclude
attorneys from “achieving success through abuse of the discovery rules rather
than by the rule of law.”[92] The court thus paid its respects to Judge
Gawthrop’s “seminal opinion” in Hall: “Having adopted the Hall approach, our Court requires
attorneys in South Carolina to operate under one of the most sweeping and
comprehensive rules on deposition conduct in the nation.”[93]
The Hall guidelines recently were embraced in Plaisted
v. Geisinger Medical Center.[94] In a medical malpractice action, plaintiffs
sought permission to re-depose certain doctors.
They complained that defense counsel had improperly entered “coaching”
objections, instructed witnesses not to answer, and departed the room twice
while a question was pending. At one
point counsel instructed the plaintiffs’ attorney to “ask the question and I’ll
consider whether I’ll let him answer it or not.”[95] At another point, after objecting repeatedly,
defense counsel stated, “[t]hat [question] won’t be answered. I have an urgent call I have to make.”[96]
Observing that Hall had received “substantial
attention in the legal literature,”[97]
the Plaisted court adopted its
“clear, workable guidelines.”[98] Those guidelines, articulated prior to the
enactment of Rule 30(d) of the Federal Rules of Civil Procedure, are consistent
with reducing the number of interruptions during depositions. Since defense counsel’s conduct violated both
Rule 30(d) and the Hall guidelines, the court allowed plaintiffs to
conduct “liberal re-questioning”[99]
of the physicians in all areas where improper objections had been made. It also
permitted the plaintiffs to explore discussions between defense counsel and the
witness during two breaks which the court found were improperly taken.[100]
As these cases demonstrate, Hall resonated with the
federal judiciary. Judges increasingly
adopted a proactive approach to controlling the toxic advocacy infecting
deposition conduct. In addition, shortly
after Hall was decided, significant changes were enacted within the text
of Rule 30 of the Federal Rules of Civil Procedure. These changes proved important in the overall
movement to shift the paradigm for deposition conduct from competitive
obstructionism to civil and cooperative advocacy.
V.
Fed.
R. Civ. P. 30(d)(1)
Rule 30 of the Federal Rules of Civil Procedure was amended
in 1993. The Advisory Committee Notes to
the amended rule expressed the same concerns about obstructive deposition
behavior articulated by Judge Gawthrop.
The Committee noted that “[d]epositions frequently have been unduly
prolonged, if not unfairly frustrated, by lengthy objection and colloquy, often
suggesting how the deponent should respond.”[101] Directions to a deponent not to answer a
question “can be even more disruptive than objections.”[102] The Committee sought to address these concerns
directly by changing the text of the rule.
According to Rule 30(d)(1), any objection interposed during a
deposition “must be stated concisely and in a non-argumentative and
non-suggestive manner.”[103] An attorney may instruct a deponent not to
answer a question only when necessary to preserve a privilege, enforce a
limitation directed by the court, or present a motion under Rule 30(d)(4). “If the court finds that any impediment,
delay, or other conduct has frustrated the fair examination of the deponent, it
may impose upon those responsible an appropriate sanction, including the
reasonable costs and attorney’s fees incurred by any parties as a result
thereof.”[104] “The making of an excessive number of
unnecessary objections may itself constitute sanctionable conduct . .
. .”[105]
Although difficult to quantify, the 1993 amendments to Rule
30 have clearly had a significant impact.[106] Judge Gawthrop’s opinion in Hall
proved to be influential, but it was still one case decided by one federal
district judge in one Pennsylvania district.
Enshrining the reform of deposition conduct within the text of a federal
procedural rule was another matter.
Therefore, the 1993 amendments
Case law interpreting amended Rule 30 illustrates the
point. In McDonough v. Keniston,[107]
defendants charged that plaintiff’s counsel had improperly obstructed
plaintiff’s testimony with speaking objections and instructions not to
answer. The deposition revealed that
plaintiff’s counsel repeatedly violated the amended version of Rule 30(d). At one point plaintiff was asked:
Q. .
. . why don’t you do your best to tell me what
you say he did wrong?
Mr.
Grabois: I think that’s a very broad,
broad question. I think it’s too broad
to be answered. It calls for legal
characterization. He had no connection,
he had no contact directly with Chuck Douglas .
. . .[108]
The court noted that the effect of this coaching became
apparent when plaintiff adopted his lawyer’s suggested answers. Defense counsel told his colleague, “You’re
not supposed to suggest an answer, it’s specifically prohibited by the Federal
Rules of Civil Procedure.”[109] However, plaintiff’s counsel persisted with
speaking objections and instructions not to answer. The court later characterized this conduct as
“flagrantly improper and in direct contravention of Rule 30.”[110]
Interpreting the new rule, the court said it was “intended to
curtail lengthy objections and colloquy.”[111] “‘[C]ounsel’s statements when making
objections should be succinct and verbally economical, stating the basis of the
objection and nothing more.’”[112] Speaking and coaching objections “are simply
not permitted in depositions in federal cases.”[113] Under the new rules the remedy for
“oppressive, annoying, and improper deposition questioning” is not to instruct
the deponent to refrain from answering, but to suspend the deposition and file
a motion under Rule 30(d)(3).[114]
Similarly, confronted with a motion to compel and to impose
sanctions for speaking objections and for instructing the witness not to answer, a Florida judge held that the
“1993 amendments to Rule 30 were intended to combat just the sort of conduct
that is complained of here.”[115] Deposition testimony “is to be completely
that of the deponent, not a version of the testimony which has been edited or
glossed by the deponent’s lawyer.”[116] The witness must be allowed to answer a
question, “free from any influence by his counsel.”[117] If the witness is confused about a question,
the witness may ask the deposing counsel for clarification. If counsel feels that a deposition is being
conducted in “‘bad faith or in such manner as to unreasonably annoy, embarrass,
or oppress’” the deponent, counsel may instruct the witness not to answer, but
only if he or she intends to move for a protective order.[118]
Objections should be limited to those permitted by Rule
32(d)(3). An objection based on form
might require a brief explanation, but only at the request of deposing
counsel. Any explanation “should be
succinctly and directly stated without suggesting an answer to the deponent.”[119] Instructions not to answer should be made
only to preserve a privilege or to move for a protective order.
In Fondren v. Republic American Life Insurance Co.,[120]
the court emphasized that the new federal rules provide clear guidance. They are understandable “without need of
judicial gloss.”[121] Adherence to the rules should eliminate
obstructionist tactics. Rule 30(d)(1)
“does not permit an attorney to instruct a witness not to answer repetitious,
harassing or argumentative deposition questions except to present a motion under
Rule 30(d)(3).”[122] Since the attorney did not provide the
instruction for that purpose, the instruction was improper. A refusal to answer, requiring the opposing
party to seek a court order directing the deponent to answer, is “the exact
opposite of what the Federal Rules of Civil Procedure clearly require.”[123]
Relying in part on the 1993
amendments to Rule 30, a New York
district judge imposed sanctions on defense counsel in Morales v. Zondo,
Inc.[124] Deposition
excerpts revealed that counsel made detailed objections, held private consultations with the witness, instructed the witness not to answer,
instructed him how to answer, and engaged in various colloquies, interruptions,
and ad hominem attacks which
frustrated the fair examination of the deponent and unnecessarily prolonged the
proceedings -- all in violation of Rule 30(d)(2).[125]
Although improved, the federal rules still send conflicting
signals to attorneys regarding proper deposition conduct. Rule 30(c) provides that “[a]ll objections
made at the time of the examination to . . . the evidence presented, the
conduct of any party, or to any other aspect of the proceedings shall be noted
by the officer upon the record of the deposition.”[126] The examination “shall proceed with the
testimony being taken subject to the objections.”[127] The rules also provide that objections to the
“competency, relevancy, or materiality of testimony are not waived by failure
to make them before or during the taking of the deposition, unless the ground
of the objection is one which might have been obviated or removed if presented
at that time.”[128]
Given these provisions, the federal rules do not require
that attorneys refrain from making objections during the course of a
deposition.[129] Objections based upon relevancy and
materiality may still be preserved even if not made, but there is no
proscription against making them. When
attorneys face the risk of waiving an objection because the ground is one
“which might have been obviated or removed if presented at that time,” they
will understandably err on the side of caution by making the objection and
preserving the record.[130]
In practice, when defending or taking depositions, attorneys
lodge objections for a variety of strategic or evidentiary reasons. For example, a defending lawyer may object to
a question, even though an objection technically is not waived, to demonstrate
defects in the opponent’s case, place the objection on the record as a reminder
to re-enter it at trial, or to induce the examining lawyer to abandon a
particular line of questioning.[131] Unless the rule specifies those objections
which may be made and those which may not, attorneys are likely to continue
making objections which they believe will enhance their client’s cause. In the process, the goals sought to be achieved
by the 1993 amendments to Rule 30(d) will be undermined.
VI.
Rule
199.5 of the Texas Rules of Civil Procedure
In response to Hall and
the 1993 amendments to Rule 30(d) of the Federal Rules of Civil Procedure, many
states have changed their rules governing deposition conduct. Some have adopted the language of the federal
rule; others have taken a more aggressive approach.[132] A comprehensive review of the rules adopted
by each state is beyond the scope of this article. However, Texas has enacted an interesting
and innovative rule which
In 1999, the Texas Supreme Court promulgated a rule governing
“Examination, Objection, and Conduct During Oral Depositions.”[133] Resulting from years of study and debate, the
rule incorporates important elements from Hall, professional codes and
creeds, and the 1993 amendments to Rule 30(d) of the Federal Rules of
Civil Procedure. The rule presents a
model for other jurisdictions to consider in their efforts to ensure that
depositions fulfill their purpose of facilitating the discovery of relevant
facts.
The Texas rule provides in pertinent part:
(d) Conduct
During the Oral Deposition; Conferences. The oral deposition must be conducted in the
same manner as if the testimony were being obtained in court during trial. Counsel should cooperate with and be
courteous to each other and to the witness.
The witness should not be evasive and should not unduly delay the
examination. Private conferences between
the witness and the witness’s attorney during the actual taking of the
deposition are improper except for the purpose of determining whether a
privilege should be asserted. Private
conferences may be held, however, during agreed recesses and adjournments. If the lawyers and witnesses do not comply
with this rule, the court may allow in evidence at trial of statements,
objections, discussions, and other occurrences during the oral deposition that
reflect upon the credibility of the witness or the testimony.
(e)
Objections. Objections to questions
during the oral deposition are limited to “Objection, leading” and “Objection,
form.” Objections to testimony during
the oral deposition are limited to “Objection, nonresponsive.” These objections are waived if not stated as
phrased during the oral deposition. All
other objections need not be made or recorded during the oral deposition to be
later raised with the court. The objecting
party must give a clear and concise explanation of an objection if requested by
the party taking the oral deposition, or the objection is waived. Argumentative or suggestive objections or
explanations waive objection and may be grounds for terminating the oral
deposition or assessing costs or other sanctions. The officer taking the oral deposition will
not rule on objections but must record them for ruling by the court. The officer taking the oral deposition must
not fail to record testimony because an objection has been made.
( f) Instructions Not to Answer. An attorney may instruct a witness not to
answer a question during an oral deposition only if necessary to preserve a
privilege, comply with a court order or these rules, protect a witness from an
abusive question or one for which any answer would be misleading, or secure a
ruling pursuant to paragraph (g). The
attorney instructing the witness not to answer must give a concise,
nonargumentative, nonsuggestive explanation of the grounds for the instruction
if requested by the party who asked the question.
(g) Suspending the Deposition. If the time limitations for the deposition
have expired or the deposition is being conducted or defended in violation of
these rules, a party or witness may suspend the oral deposition for the time
necessary to obtain a ruling.
(h) Good Faith Required. An attorney must not ask a question at an
oral deposition solely to harass or mislead the witness, for any other improper
purpose, or without a good faith legal basis at the time. An attorney must not object to a question at
an oral deposition, instruct the witness not to answer a question, or suspend
the deposition unless there is a good faith factual and legal basis for doing
so at the time.[134]
The Texas rule explicitly guides the practitioner in
conducting depositions. Only three
objections, each specified by two words, are permitted. The objections are waived if not stated as
phrased. All other objections need not
be made or recorded during the oral deposition to be raised later with the
court. An argumentative or suggestive
objection automatically waives the objection and may form the basis for
terminating the deposition or imposing sanctions. As a result, Texas counsel cannot engage in
unnecessary colloquy and cannot make unnecessary objections. They must allow the witness to testify virtually
uninterrupted.
According to an authoritative source, the new Texas rules
governing deposition conduct “have reduced time, expense, speaking objections,
witness coaching, and arguments on the record, and generally have made the
deposition process more economical and reasonable.”[135] Lawyers have recounted that the rule is
helpful particularly in acrimonious cases where speaking objections and
attorney colloquy formerly might have added hours or days to a deposition.[136]
One sign that the rule is accomplishing its mission is the
paucity of case law interpreting it. The
rule has the virtue of complete clarity:
if counsel goes beyond the specified two-word objections, the enlarged
objection is waived. Because of its
self-enforcing mechanism, the rule has had the desired effect. In one reported case, counsel repeatedly
interrupted an expert’s examination with long, argumentative objections.[137] Plaintiff’s counsel reminded him of the new
rule: “You’re entitled to make the
objection as to form — and then you are to stop.”[138] Opposing counsel did not comply. As a result, one of his expert witnesses was
stricken. In so ruling, the court
observed that the purpose of Rule 199.5(e) was “to prevent the kind of
obstructive behavior that was exhibited here and to save substantive complaints
for a later hearing before the trial court.”[139]
Prior to enactment of the Texas rule, some lawyers
expressed concern that it would turn those defending a deposition into “potted
plants.”[140] The deposing attorney might abuse the witness
with misleading and harassing questions, leaving the defending attorney
powerless to prevent such conduct. But
experience so far indicates that these difficulties have not materialized.
It should be noted that the Texas rule does permit an
attorney to instruct a witness not to answer a question under certain
circumstances. Less draconian than Rule 30(d)
of the Federal Rules of Civil Procedure in this respect, Rule 199.5(f)
allows an instruction not to answer in order to “protect a witness from an
abusive question or one for which any answer would be misleading . .
. .”[141] According to the comments to Rule 199, a
witness should not be required to answer “whether he has yet ceased conduct he
denies ever doing . . .
because any answer would necessarily be misleading on account of the way
in which the question is put.”[142] Abusive questions include those that “inquire
into matters clearly beyond the scope of discovery or that are argumentative,
repetitious, or harassing.”[143]
The Texas rule removes the “toxic advocacy” which has plagued
the profession and facilitates a return to depositions which focus on the
substance of witness testimony. The
games and nastiness which have deformed this discovery device are now on the
wane, if not entirely eliminated. The
text of the rule is sufficiently clear, and the self-enforcing penalty for
violating it sufficiently severe, that the troublesome and expensive “satellite
litigation” which often attends discovery practice has been forestalled. This is no small accomplishment.
VII.
Conclusion
During the 1980's and 1990's, taking and defending
depositions became an exercise in competitive obstructionism. Speaking objections, instructions not to
answer, and uncivil conduct often combined to transform deposition proceedings
into occasions for bickering and argument, as opposed to the discovery of
relevant facts.
Judge
In 1999, the Texas Supreme Court promulgated a new rule
governing oral depositions, which appears to have registered a significant and
salutary effect. The rule specifies
three two-word objections that counsel are permitted to make and threatens
waiver of objection if further comment or colloquy is offered. The apparent success of this new Texas rule
suggests that it offers a model for other states in their efforts to improve
the quality of depositions within their jurisdictions.
Effective advocacy in an adversarial system can survive and
flourish without obstreperous and obstructive deposition conduct by counsel. As witnesses testify without unnecessary
interruption, counsel can turn their professional skills to the evidence
adduced and the legal issues that surround such evidence. In the process, depositions can return to
their original function as efficient vehicles for the discovery of information
relevant to the resolution of a dispute.
[1] See,
e.g., Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993); In Re
Anonymous Member of South Carolina Bar, 552 S.E.2d 10 (S.C. 2001); Janeen
Kerper & Gary L. Stuart, Rambo Bites the Dust: Current Trends in
Deposition Ethics, 22 J. Legal Prof.
103 (1997-98); Jean M. Cary, Rambo Depositions: Controlling an
Ethical Cancer in Civil Litigation, 25 Hofstra
L. Rev. 561 (1996); Sandra F. Gavin, Playing by the Rules: Strategies for
Defending Depositions, 1999 L. Rev.
M.S.U.-D.C.L. 645; A. Darby Dickerson, The Law and Ethics of Civil
Practice Depositions, 57 Md. L. Rev.
273 (1998); 7 James Wm. Moore et al.,
Moore’s Federal Practice § 30.43[3] (3d ed. 2003).
[2] The South Carolina Supreme Court has
stated that judges must use their authority to prevent abusive deposition
tactics. In Re Anonymous Member
of the South Carolina Bar, 552 S.E.2d 10, 18 (S.C. 2001). One example of judicial intervention appears
in Freeman v. Schointuck, 192 F.R.D. 187 (D. Md. 2000), where defense
counsel’s insulting, sarcastic, antagonistic, and threatening comments are
reproduced at length. The court
characterized counsel’s conduct as “appallingly unprofessional” and ordered him
to write a letter of apology and take a professionalism course approved by the
court. Id. at 189.
[3] See, e.g., The American Bar
Association Lawyer’s Creed of Professionalism of the ABA Tort Trial and
Insurance Practice Section. Section
(B)(8), provides that “[i]n depositions . . . I will conduct myself with
dignity, avoid making groundless objections and refrain from engaging in acts
of rudeness or disrespect.” See also
ABA Guidelines for Litigation Conduct (1998), Lawyers’ Duties to Other Counsel,
Sections 20-22; The Texas Lawyer’s Creed, Section III, No. 17 (“I will not make
objections nor give instructions to a witness for the purpose of delaying or
obstructing the discovery process. I
will encourage witnesses to respond to all deposition questions which are reasonably
understandable.”); Rules for the Government of the Bar of Ohio, Appendix to
Rule XV - Statement on Professionalism, A Lawyer’s Aspirational Ideals
(“[a]void rudeness and other acts of disrespect in all meetings, including
depositions and negotiations”); A Lawyer’s Creed of Professionalism of the
State Bar of New Mexico, Section C (“[i]n depositions . . . I will conduct
myself with dignity, avoid making groundless objections and refrain from
disrespect.”).
[4] Fed.
R. Civ. P. 30(d)(1).
[5] See, e.g., Alaska R. Civ. P. 30(d)(1); Ark. R. Civ. P. 30(d)(1); Fla. R. Civ. P. 1.310(c); Idaho
R. Civ. P. 30(d); Ky. R.
Civ. P. 30.03(3); Me. R. Civ. P.
30(d); Md. R. Civ. P. Cir. Ct. 2-415(g); Mass. R. Civ. P. 30(c); Minn. R. Civ. P. 30.04(a); N.J. R. Ct. 4:14-3(c); Okla.
Stat. Ann. tit. 12 § 3230(D), (E) (West Supp. 2003); R.I. R. Civ. P. 30(d)(1); Tenn. R. Civ. P. 30.03; Tex. R. Civ. P. 199.5(d); Utah R. Civ. P. 30(c), (d); Vt. R. Civ. P. 30(d)(1); Wash. Super. Ct. Civ. R. 30(h); Wyo. R. Civ. P. 30(c), (d).
[6] Tex.
R. Civ. P. 199.5(e).
[7] Modern codes of ethics have deleted
most references to “zealous advocacy.” See
Judith L. Maute, Sporting Theory of
Justice: Taming Adversary Zeal with a
Logical Sanctions Doctrine, 20 Conn.
L. Rev. 7, 10 (1987). The
official comments to new ABA Rule 1.3 (Diligence) still state that a lawyer
should act “with zeal in advocacy upon the client’s behalf,” but add that the
“lawyer’s duty to act with reasonable diligence does not require the use of
offensive tactics or preclude the treating of all persons involved in the legal
process with courtesy and respect.” Model Rules of Prof’l Conduct R. 1.3 cmt.1 (2004).
[8] A Report on the Conduct of
Depositions, 131 F.R.D. 613, 613 (1990).
See also Interim Report of
the Committee on Civility of the Seventh Federal Judicial Circuit, 143
F.R.D. 371, 388 (1991) (Committee reported that depositions “can be one of the
most uncivil phases of trial practice.”).
[9] A Report on the
Conduct of Depositions, 131 F.R.D. at 613.
[10] 637 A.2d 34 (Del. 1994).
[11] Id. at 53-54.
[12] Id.
at 53.
[13] Id. at
55. A year after this decision, Delaware
amended its court rules to address deposition misconduct. Gavin, supra note 1, at 654-55 n.41.
[14] 926
F. Supp. 1282 (E.D. Tex. 1996), aff’d sub
nom. Carroll v. The Jaques Admiralty Law Firm, 110 F.3d 290 (5th Cir.
1997).
[15] Id. at 1286.
[16] Id.
[17] Id.
[18] Id.
[19] Carroll v. The Jaques Admiralty Law Firm, 110 F.3d 290, 294
(5th Cir. 1997). In contrast, the
Third Circuit in Saldana v. K-Mart Corp., 260 F.3d 228 (3d. Cir. 2001)
vacated sanctions imposed upon an attorney for repeated use of the “f” word,
ruling that the quality and quantity of the transgressions “d[id] not support
the invocation of the Court’s inherent powers.”
Id. at 237. The language cited did not occur in the
presence of the court, and it did not affect the affairs of the court or the
orderly and expeditious disposition of cases before it. Id. at 238.
[20] Corsini v. U-Haul Int’l, Inc., 630
N.Y.S.2d 45, 46 (App. Div. 1995).
[21] Id.
[22] Id. at 47.
[23] Id.
[24] Id.
[25] 586 N.Y.S.2d 182 (Sup. Ct. 1992).
[26] Id. at 184.
[27] Id. (quoting In re
McAlevy, 354 A.2d 289, 291 (N.J. 1976)).
[28] Id. at 184 (quoting In re Vincenti, 554
A.2d 470, 474 (N.J. 1989)).
[29] Id. at 190. Compare United States v. Wunsch, 84 F.3d 1110, 1117 (9th Cir. 1996)
(court held that a “single incident involving an isolated expression of a
privately communicated bias” was not shown to adversely affect the
administration of justice).
[30] 102 F.R.D. 39 (D. Md. 1983).
[31] Id.
at 40.
[32] Id.
[33] Id. at 41.
[34] 115 F.R.D. 292 (S.D.N.Y. 1987).
[35] Id.
at 294.
[36] Id. at 292.
[37] Id. at 293
(citation omitted).
[38] Id.
[39] Id. at 294.
[40] Id.
[41] Castillo v.
St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594, 597 (C.D. Ill. 1992).
[42] Id.
[43] Id. at 597.
[44] Id. at 604.
[45] According to Gavin, supra note 1, at 656 n.46, “toxic advocacy
consists of using the discovery process in a manner that results in harassment,
annoyance, or imposition of undue burden or unnecessary expense.”.
[46] 150 F.R.D. 525 (E.D. Pa. 1993).
[47] Id.
at 526 (citation omitted).
[48] Id. (citation
omitted).
[49] Id. at 528.
[50] Id.
[51] Id.
[52] Id.
[53] Id. W. Bradley Wendel maintains that the lawyer’s
role as advocate “does not apply with full force to discovery.” See W.
Bradley Wendel, Rediscovering Discovery Ethics, 79 Marq. L. Rev 895, 895 (1996). Since the function of discovery is to assist
the court by “disclosing the facts necessary for the court to make an informed
decision . . . advocacy comes into play only after the facts are fully
disclosed.” Id.
[54] 150 F.R.D. at 528.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Id. at 528-29.
[61] Id. at 529.
[62] Id.
[63] Id.
[64] Id. at
529-30.
[65] Id.
at 530.
[66] Id. at 531.
[67] Id.
[68] Id. According to one commentator, the judiciary
should have a “‘judge on call’ system similar to the medical profession’s
arrangement of emergency care for patients.”
Jean M. Cary, Rambo Depositions: Controlling an Ethical Cancer in
Civil Litigation, 25 Hofstra L. Rev.
561, 593 (1996). In Higginbotham, III, DDS
v. KCS International, Inc., 202 F.R.D. 444, 456 (D. Md. 2001), the court
noted that “there are times when it is appropriate to place a conference
telephone call to the Judge’s chambers and seek an immediate ruling.” See also McDonough v. Keniston, 188 F.R.D. 22, 25 (D.N.H. 1998) (court
ordered that the continuation of plaintiff’s deposition be taken at a time when
the magistrate was available by telephone to rule on any disputes that might
arise). Additionally, the rule governing
deposition conduct in Washington provides that a judge or special master “may
make telephone rulings on objections made during depositions.” Wash.
Super. Ct. Civ. R. 30(c).
[69] 150 F.R.D. at 531-32.
[70] Establishing a protocol for
depositions, a magistrate judge in Nevada agreed with Hall’s “underlying
concern and essential purpose,” but said that in prohibiting all
attorney-client conferences once a deposition starts it “goes too far.” In re Stratosphere Corp. Sec. Litig.,
182 F.R.D. 614, 620 (D. Nev. 1998).
Attorneys and clients regularly confer during trial and during breaks in
a client’s testimony when the court is in recess. “To deny a client any right to confer with
his or her counsel about anything, once the client has been sworn to testify,
and further to subject such a person to unfettered inquiry into anything which
may have been discussed with the client’s attorney . . . is a position this
Court declines to take.” Id.
at 621. Other cases declining to follow Hall
in its entirety include: McKinley
Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D. Colo. 2001) (court declined to deny
witness right to confer with counsel between sessions of his deposition); Odone
v. Croda Int’l PLC, 170 F.R.D. 66 (D.D.C. 1997) (plaintiff and his attorney’s
consultation during five-minute recess did not warrant sanctions); State ex
rel. Means v. King, 520 S.E.2d 875 (W. Va. 1999) (attorney may confer with client
during recess or break in discovery as long as attorney does not request break
for improper purpose).
By
contrast, the South Carolina Supreme Court embraced the Hall prohibition
on private conferences in In re Anonymous Member of the South Carolina Bar,
552 S.E.2d 10 (S.C. 2001). Also, in United States v. Phillip Morris, Inc.,
212 F.R.D. 418 (D.D.C. 2002), the court prohibited private conferences unless
the deposition was recessed over non-consecutive days.
A
spirited attack on Hall appears in David H. Taylor, Rambo as Potted
Plant: Local Rulemaking’s Preemptive Strike Against Witness-Coaching during
Depositions, 40 Vill. L. Rev.
1057 (1995).
[71] 152 F.R.D. 179 (S.D. Iowa 1993).
[72] Id.
at 180.
[73] Id.
[74] Id. at 181.
[75] Id.
[76] Armstrong v. Hussmann Corp., 163 F.R.D.
299, 304 (E.D. Mo. 1995). See also
Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998) (court-ordered payment
of costs and letter of apology for deposition misconduct); In re
Amezaga, 195 B.R. 221 (D.P.R. 1996) (obstructive conduct warranted sanctions
against counsel personally).
[77] 164 F.R.D. 559, 559-60 (N.D. Okla.
1995).
[78] Id. at 560.
[79] Id.
[80] Id. at 561.
[81] Id. The court added that should deposing counsel
want clarification of the basis for the objection, “that inquiry shall be made
outside the presence of a witness.” Id.
The court’s ruling on specific language to be used in making an
objection prefigured the Texas adoption of Rule 199.5.
[82] In re Anonymous
Member of the South Carolina Bar, 552 S.E.2d 10 (S.C. 2001).
[83] Id. at 15.
[84] Id. at 16.
[85] Id.
[86] Id. The rule also provides that deposing counsel
shall give to opposing counsel all documents shown to the witness either before
the deposition begins or contemporaneously while showing the document to the
witness. Retreating somewhat from Hall,
the rule states that if the documents have not been provided or identified
two days before the deposition, the witness and counsel “may have a reasonable
amount of time to discuss the documents before the witness answers questions
concerning the document.” Id.
[87] Id. at 17.
[88] Id.
[89] Id.
at 18.
[90] Id.
[91] Id.
(citing In re Alford
Chevrolet-Geo, 997 S.W.2d 173, 180 (Tex. 1999)).
[92] Id.
[93] Id.
at 16.
[94] 210 F.R.D. 527, 532 (M.D. Pa. 2002).
[95] Id. at 530 (citation omitted).
[96] Id.
at 532.
[97] Id. (quoting Wm. Moore et al., Moore’s Federal Practice § 30.43[6] (3d ed.
2000)).
[98] Id.
at 533.
[99] Id. at 535.
[100] Id.
at 533-35. The court also ordered that
witnesses whose testimony was obstructed be re-deposed in O’Brien v. Amtrak,
163 F.R.D. 232 (E.D. Pa. 1995) and Frazier v. Southeastern Pennsylvania
Transportation Authority, 161 F.R.D. 309 (E.D. Pa. 1995).
[101] Fed.
R. Civ. P. 30(d) advisory committee’s note (1993).
[102] Id.
[103] The rule was amended in 2000 to remove
reference to objections “to evidence” and limitations “on evidence,” making it
clear that the rule applies to “any objection to a question or other issue
arising during a deposition.” Fed. R. Civ. P. 30(d) advisory
committee’s note (2000).
[104] Fed.
R. Civ. P. 30(d)(3).
[105] Fed.
R. Civ. P. 30(d) advisory committee’s
note (1993).
[106] This is demonstrated by the number of states that have adopted the federal rule’s language requiring that objections be stated concisely and in a non-argumentative and non-suggestive manner and which have placed restrictions on instructions not to answer. See supra note 5 and infra note 131.
[107] 188 F.R.D. 22 (D.N.H. 1998).
[108] Id. at 24.
[109] Id.
at 25.
[110] Id.
[111] Id. at 24.
[112] Id.
(citing Damaj v. Farmers Ins. Co., 164 F.R.D. 559, 561 (N.D. Okla. 1995)).
[113] Id.
[114] Id. See
also Boyd v. University of
Maryland Medical System, 173 F.R.D. 143, 145 (D. Md. 1997) (Court
emphasized that Rule 32(d)(3) preserves an attorney’s ability to “redress
abusive deposition tactics by unilaterally terminating the deposition and
filing a motion with the Court for an order to discontinue the objectionable
questioning.”).
[115] Quantachrome Corp. v. Micromeritics
Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla. 1999).
[116] Id.
[117] Id.
[118] Id. at 701
(quoting Fed. R. Civ. P.
30(d)(3)).
[119] Id. at n.4.
[120] 190 F.R.D. 597 (N.D. Okla. 1999).
[121] Id.
at 602.
[122] Id. at 600.
[123] Id.
[124] 204 F.R.D. 50 (S.D.N.Y 2001).
[125] Id. at 54-58.
[126] Fed. R. Civ. P. 30(c).
[127] Id.
[128] Fed.
R. Civ. P. 32(d)(3)(A).
[129] See, e.g., 8A Charles Alan Wright et al., Federal Practice
and Procedure: Civil § 2113 at 97 (2d ed. 1994) (authors find it “noteworthy
that the rule stops short of absolutely forbidding any objections whatsoever
except those that would be waived unless raised”).
[130] See
Quantachrome Corp. v.
Micromeritics Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla. 1999) (It
is “arguable whether objections based on relevancy should even be made during
the deposition.”).
One
leading commentator has correctly observed that although objections grounded on
relevance or materiality are preserved for trial and need not be made, “the
caution and combativeness typically found in lawyers has made elimination of
surplus objections a difficult task.” 7 James Wm. Moore et al., Moore’s Federal Practice § 30.43 [1] (3d ed. 2003).
[131] See
10 Federal Procedure, Lawyers Edition
§ 26:297 (George L. Bounds et al. eds. 1994).
[132] For example, the Washington rule contains a section on
Conduct of Depositions explicitly addressing objections, instructions not to
answer, responsiveness of the witness, conduct of examining counsel, private
consultations, and observance of standards required in the courtroom during
trial. Wash.
Super. Ct. Civ. R. 30(h).
The New
Jersey rule provides that “[n]o objections shall be made during the taking of a
deposition except those addressed to the form of a question or to assert a
privilege, a right to confidentiality, or a limitation pursuant to a previously
entered court order.” N.J. R. Ct. 4:14-3(c). This is more restrictive than the federal
rule which does not explicitly proscribe any objections.
In Alaska, “[n]o specification of the
defect in the form of a question or the answer shall be stated unless requested
by the party propounding the question.” Alaska R. Civ. P. 30(d)(1). In
addition, the rule prohibits “[c]ontinual and unwarranted off the record
conferences between the deponent and counsel following the propounding of
questions and prior to the answer.” Id.
The Maryland rule provides that if an objection could have the effect of coaching the deponent, then “the deponent, at the request of any party, shall be excused from the deposition during the making of the objection.” Md. R. Civ. P. Cir. Ct. 2-415(g). Committee notes to the Maryland rule provide examples of concise and non-argumentative objections such as “objection, leading;” “objection, asked and answered;” and “objection, compound question.” Id. This is similar to Texas Rules of Civil Procedure, Rule 199.5.
[133] The Texas Supreme Court has
constitutional and statutory authority to promulgate rules of civil
procedure. Tex. Const. art. V, § 31; Tex.
Gov’t. Code § 22.004 (2004).
[134] Tex. R. Civ. P. 199.
[135] Alexandra W. Albright et al., The New Rules Governing Discovery,
Handbook on Texas Discovery Practice, at xiii (Texas Practice Series
2003 ed.).
[136] Robert H. Pemberton, The First Year
Under the New Discovery Rules, The
Big Issues Thus Far (2000).
[137] In re Harvest Cmtys. of Houston, Inc.,
88 S.W.3d 343 (Tex. App. 2002).
[138] Id. at 346.
[139] Id.
[140] David C. Kent, The Lawyer as “Potted
Plant,” The Texas Lawyer,
Aug. 24, 1998, at 24.
[141] Tex. R. Civ. P. 199.5(f).
[142] Tex. R. Civ. P. 199 cmt.4.
[143] Id. “The attorney instructing the witness not to
answer must give a concise, nonargumentative, [and] nonsuggestive explanation
of the grounds” therefor, if the party who asked the question requests. Tex.
R. Civ. P. 199.5(f).
(Author’s bio)
E.
Phelps Gay is a partner in the New Orleans firm of Christovich & Kearney,
L.L.P. A graduate of Princeton
University and Tulane University School of Law, he practices in the areas of
admiralty, products liability, international law, and professional liability. Mr. Gay is a past president of the Louisiana
State Bar Association and a current member of the Board of Directors of the
Louisiana Association of Defense Counsel.
He has been an active member of the Federation of Defense &
Corporate Counsel since 1987.