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.”