Manny and Floyd can’t stop fighting. Recently, counsel for the promoter of Boxer Manny Pacquiao, Top Rank Inc., moved for another opportunity to depose an investment firm, as part of a $100 million antitrust lawsuit against the firm and Floyd Mayweather Jr.’s manager, saying its attorneys’ “obstructionist behavior” barred proper questioning. According to Top Rank, counsel for the deponent obstructed the proceeding by instructing the witness not to answer several questions and by failing to prepare the representative for the line of questioning Top Rank advised that it tended to pursue. The result, per Top Rank, was a “sham deposition”. This dispute highlights what may happen when a party engages in misconduct during a deposition.
Sanctions for deposition abuse, which can include overuse of “form” objections, blatant “witness coaching” and “excessive interruptions”, are not news. While an attorney has a duty to zealously advocate for her client, this zealous advocacy may cross the line, violating Rules of Professional Conduct regarding respect for rights of third parties and attorney misconduct, and even running afoul of rules of civil procedure.
Indeed, the Federal Rules of Civil Procedure permit sanctions for deposition misconduct. Rule 30(d), which limits speaking objections and instructions not to answer questions, authorizes limitations on deposition duration, and authorizes sanctions for obstructing a deposition, is a powerful tool for attorneys who face interference in depositions from defending counsel, as the Rule The allows for “appropriate” sanctions against “the persons responsible” for the obstructionist conduct.
Pursuant to this Rule, courts have repeatedly demonstrated a willingness to sanction parties, their lawyers, and even non-parties upon a showing of material, unjustified interference with depositions . In evaluating whether sanctions are appropriate, courts often evaluate whether the conduct is a good faith attempt to zealously advocate for her client.
The majority of jurisprudence regarding this topic infers that the following factors are primary in evaluating whether sanctions should be imposed for Rule 30(d) violations: (1) harm to the deposing party and/or deponent, (2) the objective reasonableness of the position taken by the offending party and/or counsel, and (3) the good faith and willingness to follow the rules displayed by the offending party and/or counsel. For example, an attorney has been sanctioned for “Rambo litigation” where the attorney “monopolized” 20 percent of his client’s deposition in that of 167 pages of transcript, there were only four segments where five or more pages of uninterrupted questioning occurred and of 4025 lines of transcript, 818 were occupied by the offending counsel’s interference.
Sanctions fashioned by the courts have included a second deposition of the witness, limits and/or restrictions at subsequent depositions in the case, and various monetary penalties, including the costs of motions related to the obstructed deposition, costs of the first and second depositions themselves, and monetary sanctions paid to the court
How to make sure you aren’t accused and/or penalized for any such misconduct? Some tips are below:
- Blow by blow. Prepare your witness well. Review the deposition rules, the major themes in the case, and any documents that may be used as deposition exhibits. Don’t forget to explain that the deposition will not resemble a high-drama, gasp-worthy “Law & Order” episode. Mock depositions and sample questioning can help inure the witness to what the deposition will really be like. Prepare the witness and trust them to answer the questions; you will feel less pressure to “protect” that witness by engaging in deposition obstruction.
- Jab judiciously. If you must object, keep objections to a minimum, and make sure they are founded. Don’t object just because you can; this just prolongs the process. It usually just adds time to the process and increases the risk that your opponent may pursue sanctions.
- Caution in your client’s corner. Don’t coach the witness. Preparation will be an antidote. Avoid verbal suggestions, even the seemingly innocent “if you know” or “if you can” that are often interjected after every difficult question.
- Ban below the belt behavior. Don’t be an obstructionist. Discovery is about the free flow of information, not gamesmanship and harassment. Follow the spirit of the rules. Dial down the bluster and focus on civility. An attorney unafraid to decide the case on the merits and unwilling to engage in petty tactics and gamesmanship, will gain the respect of her adversaries, the court, and her clients.