| • | Rule 30, Fed. R. Civ. P., sets out general requirements for objections raised at deposition. | ○ | Subdivision (c)(2) requires that any objections “be stated [on the record] concisely in a nonargumentative and nonsuggestive manner.” | | ○ | Sanctions may be awarded under Subdivision (d)(2) where an attorney, inter alia, “impedes, delays, or frustrates the fair examination of the deponent.” | | ○ | Under subdivision (c)(2), an attorney may only instruct a deponent not to answer a question at deposition where “necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3),” which permits a party to move to limit or terminate a deposition where such was conducted “in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party . . . .” |
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| • | Section 221 of the New York Codes, Rules and Regulations sets forth New York’s Uniform Rules for the Conduct of Depositions, and similarly prohibits lengthy objections. | ○ | Section 221.1(b) requires that objections “be stated succinctly and framed so as not to suggest an answer to the deponent,” and prohibits an attorney from making “statements or comments that interfere with the questioning” except to raise objections. |
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| • | In addition to the foregoing express limitations on conduct during a deposition, an attorney’s conduct during a deposition also may run afoul of other ethical obligations. | ○ | ABA Model Rule 3.4(a)(1) and New York Rule of Professional Conduct 3.4(a)(1), which are substantially similar, prohibit an attorney from obstructing the other party’s access to documents or otherwise concealing or suppressing evidence, either directly or through another person. Comment 1 to each Rule notes that “the procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” | | ○ | ABA Model Rule 3.4(c) and New York Rule of Professional Conduct 3.4(c) prohibit an attorney from ignoring a rule of a Court, such as by instructing a party not to respond to a deposition question. Under ABA Model Rule 3.4(c), a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” Under New York Rule 3.4(c), a lawyer shall not “disregard or advise the client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take appropriate steps in good faith to test the validity of such rule or ruling.” | | | | | ○ | ABA Model Rule 8.4(c) and (d) and New York Rule of Professional Conduct 8.4(c) and (d), which are identical, state that it is “professional misconduct” for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” or “that is prejudicial to the administration of justice.” |
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| • | Case law makes clear that courts are wary of coaching by counsel during a deposition, and have awarded monetary and other sanctions for such conduct. As the court in In re Neurontin Antitrust Litig., No. 02-1390(FSH), 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011) cautioned: [C]ounsel should know that the purpose of a deposition is to find out what the witness thinks, that objections should be concise, non-argumentative, and non-suggestive, and hence that counsel should not (1) make speaking, coaching or suggestive objections; (2) coach or change the witness’s own words to form a legally convenient record; (3) frustrate or impede the fair examination of a deponent during the deposition by, for example, making constant objections and unnecessary remarks; (4) make speaking objections such as ‘if you remember,’ ‘if you know,’ ‘don’t guess,’ ‘you’ve answered the question,’ and ‘do you understand the question’; or (5) state that counsel does not understand the question. In re Neurontin Antitrust Litig., No. 02-1390(FSH), 2011 U.S. Dist. LEXIS 6977, at *40 (D.N.J. Jan. 24, 2011) (citingMazzeo v. Gibbons, Civ. No. 08-1387, 2010 U.S. Dist. LEXIS 88523, at *2 (D. Nev. July 27, 2010)). | ○ | Speaking objections are often viewed as a means for an attorney to coach a witness during the course of a deposition. A speaking objection is “[a]n objection that contains more information (often in the form of argument [or suggestion]) than needed by the judge to sustain or overrule it.” Black’s Law Dictionary 1178 (9th ed. 2009). See also Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 U.S. Dist. LEXIS 1363, at *15 (D. Kan. Jan. 5, 2012) (“An objection that a question is ‘suggestive’ is an improper speaking objection. Its only object can be to warn the witness not to agree.”). | | ○ | Courts may also consider communications during a break or recess to constitute coaching. By way of example, in Prosser v. Avanti Petroleum, Inc., No. 4:98CV1104 JCH, 1999 U.S. Dist. LEXIS 20843 (E.D. Mo. Nov. 30, 1999), the Court disqualified plaintiff’s counsel where, after a break, the plaintiff materially changed testimony from that given just prior to the break. Id. at *5-6. The Court stated: “The change took place after a break in the proceedings during which [counsel and plaintiff] admittedly discussed the testimony at issue, however briefly. The Court thus finds the possibility of tainted testimony and/or witness tampering in the instant case too substantial to ignore, and in the interest of the appearance of propriety will therefore order that [counsel] be disqualified from acting as Plaintiffs’ attorney in this matter.” Id. |
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| • | Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595 (N.D. Iowa 2014) rev’d sub nom.Sec. Nat. Bank of v. Jones Day, 800 F.3d 936 (8th Cir. 2015). | ○ | The sanctions in this case were vacated on appeal because the Judge failed to give particularized notice of the unusual nature of the sanctions. However, the case is still relevant because the conduct is sanctionable and demonstrates a court’s ability to craft unique sanctions. | | ○ | The Court criticized counsel’s deposition conduct, noting three categories of improper conduct as counsel: (1) “interposed an astounding number of ‘form’ objections, many of which stated no recognized basis for objection”; (2) “repeatedly objected and interjected in ways that coached the witness to give a particular answer or to unnecessarily quibble with the examiner”; and (3) “excessively interrupted the depositions . . . frustrating and delaying the fair examination of witnesses.” Abbott Labs, 299 F.R.D. at 600. | | ○ | The Court imposed a unique sanction, noting “less interest[] in negatively affecting Counsel’s pocketbook than . . . in positively affecting Counsel’s obstructive deposition practices.” Id. at 609. Thus, the Court ordered the attorney to make a training video on the proper scope of objections permissible in a deposition, stating: Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified “form” objections, witness coaching, and excessive interruptions. The lawyer appearing in the video may mention the few jurisdictions that actually require only unspecified “form” objections and may suggest that such objections are proper in only those jurisdictions. The lawyer in the video must state that the video is being produced and distributed pursuant to a federal court’s sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval . . . . Id. at 610. |
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| • | Faile v. Zarich, HHDX-04-CV-06-5015994-S, 2009 Conn. Super. LEXIS 1600 (Conn. Super. June 15, 2009). | ○ | From 1997 through 2008, a Connecticut attorney was sanctioned on five separate occasions for engaging in misconduct at depositions. The rules governing an attorney’s conduct at depositions in Connecticut are substantially similar to those in New York. | | ○ | In 2008, an opinion was issued detailing conduct giving rise to the fifth set of sanctions, and ordering $2,368 in sanctions. See Faile v. Zarich, 2008 Conn. Super. LEXIS 1779 (July 9, 2008). | | ○ | Speaking Objections: The Court found that, inter alia, the sanctioned attorney made comments on the record that “went well beyond making an objection as to the form of the question or simply were improper comments.” Id. at *7. The Court explained that a proper objection is limited to a simple statement of the objection, recognizing that “[s]imply stating, ‘Objection to the form of the question,’ is usually sufficient.” Id. at *8. | | ○ | Witness Coaching: The Court also sanctioned the attorney for witness coaching on numerous occasions during various depositions. Q [Plaintiffs’ counsel]: And how would gaining access cause a branch of the femoral artery to be sheared off? What mechanically would have to happen? [Sanctioned Counsel]: I am going to object. This is completely hypothetical. Are we talking about in this case, under a particular set of circumstances? [Plaintiffs’ counsel]: In the process of gaining access to a femoral artery. [Sanctioned Counsel]: I just think that is beyond what – Dr. Driesman didn’t perform that part of the procedure. He wasn’t there when that part of the procedure was performed. Id. at *8-9. The Court recognized this to be witness coaching, as it stated: “By her interjection of her statement of evidence . . . defense counsel was . . . suggesting to the witness what she wanted him to say in response to plaintiffs’ counsel’s question.” Id. at *9. | | ○ | The Court also addressed the following interaction at deposition: Q [Plaintiffs’ Counsel]: Would there have been also an attending cardiologist likewise on call? A. Yes. Q: Was that Dr. Zarich that day? A. Yes. [Sanctioned Counsel]: Do you know that? Be careful of that because I don’t think he was on call that day, but I could be wrong. Id. at *11. The Court found the latter statement by counsel to be coaching of the witness: “Her question to the witness when opposing counsel was examining him was improper, as was her comment about what she thought the evidence showed.” Id. | | ○ | Similarly, when a non-party witness was asked about a document, the following exchange occurred: Q [Plaintiffs’ Counsel]: So if a CAT scan demonstrates two hours after the stick that there’s an active brisk arterial bleed, that’s not an indication that it’s continuing and not stopping on its own? A: I can’t comment on this but I don’t know if a CAT scan can tell you there is a continuous brisk bleed. [Sanctioned Counsel]: Where does it say there’s a brisk bleed? A: It’s only suggesting. They cannot be certain. [Sanctioned Counsel]: Would you just point that out— [Plaintiffs’ counsel]: I don’t have it in front of me. [Sanctioned Counsel]: I’m looking at Bates stamp 1672. [Plaintiffs’ counsel]: ‘There are multiple foci of dense contrast within the hematoma suggesting brisk active hemorrhage.’ [Sanctioned Counsel]: But that doesn’t say that there’s an active bleed. Id. at *12. The Court described this as “coaching” and stated that this was an “inappropriate suggestion to the witness as to how to testify.” Id. | | ○ | In 2009, the attorney was sanctioned for the sixth time overall, and a second time in the same case, in the amount of $11,884. See Faile v. Zarich, HHDX-04-CV-06-5015994-S, 2009 Conn. Super. LEXIS 1600 (Conn. Super. June 15, 2009). On this occasion, the Court found that the attorney had been obstructive and improperly refused to allow deponents to answer questions that had been posed. Id. at *15. |
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| • | In re Neurontin Antitrust Litig., No. 02-1390(FSH), 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011) | ○ | Defense counsel was subject to non-monetary sanctions because during a deposition, he made statements to “interject information to share with the deponent; add to the deponent’s answers; contribute his own nuanced views of the testimony, facts, pleadings, or the criminal information—notwithstanding the deponent’s answers; interrupt the plaintiffs’ counsel mid-question; express his umbrage at having to defend the antitrust defendants’ denials; and make speaking objections.” Id. at *41 (internal footnotes omitted). | | ○ | The Court highlighted certain examples of improper coaching during the deposition, including the following: Q: Okay. And let’s also look at paragraph 105, 105 of the CVS complaint. A: Sorry. Q: Okay. The complaint first mentions bipolar mental disorders, and I believe you have testified that Pfizer did in fact illegally promote Neurontin for that particular indication? [Sanctioned Counsel]: Sorry. Could you repeat the question? [Plaintiffs’ Counsel]: Could you read it back, please. [Record read.] [Sanctioned Counsel]: Objection. Mischaracterizes his testimony. I believe he said consistent with the plea. A: Consistent with the plea, bipolar disorder was admitted in the information and the plea. Q: Was that plea consistent with Pfizer’s conduct? [Sanctioned Counsel]: Objection. Vague. A: As is consistent with the plea. That is what we admitted to. Id. at *41 n.10 * * * Q: Do you have any information what — what this other information is that would expound on the information provided to you by counsel on pages 9 through 12? A: Oh, just an example would be other policies that would be consistent with some of the examples that we have identified here that show the duration of the policies over — over the multiple year period in question. Q: Is it — [Sanctioned Counsel]: Let me also object and note for the record that as counsel is aware this information comes from the MDL case, from the Franklin case, and from the record in those cases that is incorporated in this case, and that is a massive record, you know, accounting for hundreds of depositions and millions of documents. Q: Is it — [Sanctioned Counsel]: Let me also note for the record that counsel is essentially with your questions preventing the witness from listing the depositions that form the basis of the company’s denial of this paragraph as well as addressing the issue of how the denial is consistent with the information included. Id. at *41 n.11. * * * Q: I read those complaints as being substantially similar, if not identical, the allegations in those two particular complaint paragraphs. A: That is fair. Q. Okay. And then I assume or I hope I can assume that if I were to ask you the same series of questions that I asked with respect to paragraph 105, if I ask you those same questions with respect to paragraph 61 your answers would be the same? [Sanctioned Counsel]: I am sorry. With respect to 105 and 61? [Plaintiffs’ Counsel]: Yes. [Sanctioned Counsel]: I object. I mean there are — paragraph — they are different in terms of referencing the strategy, for example, and also I think referencing against pursuant to this strategy in paragraph 61, which does refer back to paragraph 60. So they are different in terms of what they are — Id. at *43 n.12. * * * [Sanctioned Counsel]: Objection. Foundation. You’re assuming that — [Plaintiffs’ Counsel]: Let him answer the question. [Sanctioned Counsel]: Pfizer drafts — [Plaintiffs’ Counsel]: Let him answer the question. If you have an objection as to form make the objection. No speaking please, [Sanctioned Counsel]. [Sanctioned Counsel]: Yes, sir. Objection. Foundation, calls for speculation. [Plaintiffs’ Counsel]: Fine. [Sanctioned Counsel]: You can’t make up facts. [Plaintiffs’ Counsel]: That — you shouldn’t add commentary. If you have an objection— [Sanctioned Counsel]: I am explaining my foundation objection. Id. at *43 n.13. * * * Q: And that was with respect to some — a potential civil liability as opposed to criminal? [Sanctioned Counsel]: The document speaks for itself. I don’t know if you said it for the record that it is quoting something else. A: Yes. Again, the document here, whatever is said here, I’m not sure of the accuracy of this particular statement. * * * Q: Mr. Gibney, was there a civil and criminal investigation into Pfizer’s conduct relating to the promotion of Neurontin for off-label uses? [Sanctioned Counsel]: Just to the best of his knowledge? A: Yes. To the best of my knowledge, yes, there was. Id. at *47 n.17. |
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| • | Marino v. Usher, Civ. No. 11-6811, 2014 U.S. Dist. LEXIS 69521 (E.D. Pa. May 21, 2014). | ○ | A federal judge sanctioned plaintiff’s counsel for acting “disgracefully” where counsel engaged in improper conduct, despite express instructions from the Court to cease such conduct. Id. at *36. | | ○ | Specifically, after an instruction from the Court to refrain from making lengthy speaking objections during depositions, the sanctioned attorney made 65 speaking objections during a deposition. Id. at *5. | | ○ | Counsel also made sexist and abusive remarks, such as the following to defense counsel: [Sanctioned Counsel]: Don’t be a girl about this. . . . [Defense Counsel]: I would appreciate you not referring me to as a girl, which you have done repeatedly off the record and on the record. Id. at *7. Similarly, the Court objected to counsel’s abusive titling of briefs, which included captions such as “Response in Opposition Re Joint Motion for Sanctions by Moving Defendants Who Are Cry Babies” and “Plaintiff’s Response to Defendants’ Incessant Complaining.” Id. at *10. | | | | | ○ | The Court also found that in the course of the litigation, the sanctioned attorney had “[lied] to an unsophisticated, impoverished, unrepresented party, thus convincing the [party] to expose himself (probably baselessly) to substantial liability.” Id. at *36. |
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| • | Simmons v. Minerley, 847 N.Y.S.2d 905 (Sup. Ct, Dutchess Cnty. 2007). | ○ | A lawyer was sanctioned in the amount of $2,500 for making numerous suggestive objections that instructed his client on how to respond to questions posed. For example, when stating an objection to a question about a notice of claim, the sanctioned attorney stated: I will not allow him to answer that because, what’s in the Notice? There’s no testimony that he’s read it and knows what’s in it, so there’s no foundation for that question. What the document says and what he knows it says may be two different things. Id. at 9. |
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| • | Specht v. Google, Inc., 268 F.R.D. 596 (N.D. Ill. 2010). | ○ | The Court awarded sanctions in the amount of $1,000, with a stern warning of more severe sanctions should improper conduct continue. The Court found that the sanctioned attorney had made improper speaking objections, among other things. This included the following: A: No, I wouldn’t – Sanctioned Counsel: Object – stop. You’ve got to let – you’ve got to let me object. Object to the form of that question as calling for material that would constitute work product. It’s argumentative. A: I’m going to refuse to answer that based on attorney-client privilege and work product doctrine. [Plaintiff’s Counsel]: But do you understand why you’re here today as a witness, sir? [Sanctioned Counsel]: Yeah. Because he’s been subpoenaed. That’s why he’s here. You issued a subpoena, and we accepted service of the subpoena. That’s why he’s here. [Plaintiff’s Counsel]: Mr. Fleming, do you have an objection, rather than just speaking and testifying for the witness? [Sanctioned Counsel]: Well, these questions are ridiculous. Why is he here? He’s here pursuant to legal process. That’s why he’s here, because you guys issued a subpoena, and we accepted service. That’s why we’re here. [Plaintiff’s Counsel]: And we’ve asked if he understands — Sanctioned Counsel: He’s not here — sorry? [Plaintiff’s Counsel]: Mr. Fleming — [Sanctioned Counsel]: That’s the answer. Okay. Answer the question. Why are you here, [witness]? A: Pursuant to a subpoena. Id. at 598-99. * * * Q: [C]ould you give me an idea from 2001 to the time this case started, what the breakdown would be in terms of time spent on client work and time spent on your own business ventures? A: I have no idea. Q: You couldn’t – 50/50, 25/30? A: I would be guessing. Q: Can you give me your best guess? [Sanctioned Counsel]: Well, don’t guess. Don’t guess. A: I’m not going to guess. Q: Well, I’m asking you to give me your best guess, sir. [Sanctioned Counsel]: He’s not going to give you a guess. So don’t answer the question. Asked and answered. Let’s move on. [Plaintiff’s Counsel]: Counsel, unless it’s privileged matter or work product, you cannot instruct the witness not to answer. [Sanctioned Counsel]: You know, when it becomes abusive, absolutely I can. You’ve asked the question. He’s told you he’d have to guess. You asked him to guess. He said he won’t guess. Id. at 599. |
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| • | Tucker v. Pacific Bell Mobile Services, 186 Cal. App. 4th 1548 (2010). | ○ | During a deposition, the plaintiffs’ counsel “wrote on a legal pad and showed it to [his witness].” Id. at 1550. Counsel also instructed the witness not to answer certain questions relating to the witness’s viewing of the legal pad, as well as other standing issues. After the deposition, counsel threw the notes away. Defendants moved for sanctions, and the court granted the motion. |
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| • | Ngai v. Old Navy, No. 07-5653(KSH)(PS), 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009). | ○ | After accidentally texting plaintiff’s counsel during a video-conference deposition, it became apparent that defense counsel had been communicating with his witness via text message during questioning. Plaintiff’s counsel moved for sanctions, which the Court granted, additionally finding that the text messages exchanged during the deposition were not privileged. Id. at *3. |
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| • | Hallam v. Johnson, No. D054852, 2009 Cal. App. Unpub. LEXIS 9866 (Cal. Ct. App. Dec. 15, 2009). | ○ | The court held that, among other things, counsel had coached the witness through speaking objections, and that counsel’s more than 300 objections throughout the deposition were intended to interrupt the flow of deposition. The attorney was sanctioned in the amount of $25,607.03. Id. at *36. |
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| • | Briese Lichttechnik Vertriebs GmbH v. Langton, No. 09 Civ. 9790(LTS)(MHD), 2011 U.S. Dist. LEXIS 6340 (S.D.N.Y. Jan. 14, 2011). | ○ | Motion for sanctions was granted where, inter alia, counsel interposed speaking objections and even engaged in the “bizarre” practice of providing the witness with written statements in response to questions. Id. at *24. |
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| • | More recently, a New York court went through each deposition question and objection before ruling on whether the objection was proper. See Rodriguez v. Clarke Worley Goodman, M.D., 805453-2013, 2015 N.Y. Misc. LEXIS 2782 (Sup. Ct. NY C’nty July 28, 2015). Although the court declined to sanction the attorney, it nevertheless found that the attorney violated NYCRR Rules 221.1 and 221.3 by making speaking objections and suggestive answers. For example: Q (Deposing Counsel): In your experience, was there any custom and practice within how long an EKG result would be reviewed after it was taken? (Violating Counsel): Objection to form. A custom and practice is linked to a particular individual, so you’re asking about — (Deposing Counsel): No. I’m asking if there was a custom and practice— (Violating Counsel): Standard of care. (Deposing Counsel): I’m asking if there was a custom and practice in the ER within how long an EKG would be— (Violating Counsel): whose custom and practice? (Deposing Counsel): The custom and practice in the ER. (Violating Counsel): The ER is not a person. Only people can have a custom and practice. (Deposing Counsel): Are you instructing him not to answer the question? (Violating Counsel): I’m asking you to be more specific with your question. (Deposing Counsel): That’s my exact question. Here, the court found that the deposing counsel asked the question plainly and that the inquiry was not a “compound question, argumentative, presumptive, misleading, or excessively broad.” It therefore concluded that “the objection itself was unwarranted and disruptive.” Id. at *11-12. |
| • | Witness coaching also runs the risk of penalties for suborning perjury and/or witness tampering, which presents the risk of severe sanctions and even potential criminal liability. See In re Brican Am. LLC Equip. Lease Li tig., No. 10-md-02183, 2013 U.S. Dist. LEXIS 142842, at *1291 (S.D. Fla. Oct. 1, 2013) (considering, but denying, motion based on accusations that counsel engaged in witness tampering and suborning perjury); Riley v. City of New York, No. 10-CV-2513 MKB, 2015 WL 541346, at *36-37 (E.D.N.Y. Feb. 10, 2015) (holding that monetary sanctions, in addition to notifying the jury of plaintiff s witness tampering and permitting the jury to draw an adverse inference against plaintiff based on the witness tampering allegations, are appropriate sanctions). |
| • | Rule 30.4 of the Local Civil Rules for EDNY/SDNY addresses conferences between a defending attorney and a deponent during the course of a deposition. | ○ | This Rule provides: “An attorney for a deponent shall not initiate a private conference with the deponent while a deposition question is pending, except for the purpose of determining whether a privilege should be asserted.” |
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| • | Section 221.3 of the New York Codes, Rules and Regulations similarly addresses communications between an attorney and deponent during a deposition. This Section states: An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 [privilege, in violation of Court-imposed limitation, or improper and prejudicial] of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly. |
| • | However, local rules of Courts and/or jurisdictions may differ and even proscribe communications during depositions and even recesses. For this reason, counsel should consult the relevant local rules of practice before taking and/or defending a deposition. | ○ | For instance, Rule 30.6 of the U.S. District Court for the District of Delaware Local Rule of Practice and Procedure states: From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order. (emphasis added.) | | ○ | South Carolina follows a similar rule whereby attorney-client communications are prohibited following the start of a deposition, except to determine privilege. “[E]ven during breaks in the deposition such as a lunch or overnight break, witnesses and their counsel cannot talk substantively about prior or future testimony.” In re Anonymous Mbr. of S.C. Bar, 346 S.C. 177, 191 (S.C. 2001) (citing S.C. R. Civ. P. 30(j)(5)). | | ○ | By way of contrast, Texas permits private conferences during recesses that are agreed upon by the parties. Tex. R. Civ. P. 199.5(d) (providing that “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.”). | | ○ | The Los Angeles County Bar Association Professional Responsibility and Ethics Committee has taken a broader position regarding deposition break consultations. See Formal Ethics Opinion 497 (March 8, 1999). The Committee held that there “is no ethical duty to refrain from interrupting a deposition to consult with the client or to consult with a client during breaks or recesses in the client’s deposition,” and that an attorney may even be ethically obligated to do so at times, such as when the lawyer knows that the client has testified in a manner that is intentionally false or misleading, or if a deposition question calls for privileged information to be disclosed. The Opinion further explained that it was the content of the communication – and not the timing during the deposition – that matters, i.e., “whether the purpose or consent of the consultation crosses the line between proper advocacy and suborning perjury or obstructing justice.” |
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| • | Courts also have taken differing views on the propriety of communications during a deposition. | ○ | In In re Stratosphere Corp., 182 F.R.D. 614 (D. Nev. 1998), the Court prohibited conferences during questioning, id. at 620, but permitted conferences during breaks that counsel did not request. Id. at 621. Such conferences are proper to ensure that the client did not “misunderstand or misinterpret questions or documents,” or to “attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness.” Id. See also Coyote Springs Inv., LLC v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 347 P.3d 267, 273 (NV 2015) (declining to approve witness-counsel conferences during requested breaks, except to determine whether to assert a privilege and holding that for the attorney-client privilege to apply to these conferences, counsel must state on the deposition record: (1) the fact that a conference took place; (2) the subject of the conference; and (3) the result of the conference); Circle Grp. Internet, Inc. v. Atlas, Pearlman, Trop & Borkson, P.A., 2004 WL LEXIS 2609, at * 5 (N.D. Ill. Feb. 19, 2004) (conference acceptable so long as no question pending); In re Braniff Inc., No. 89-03325-BKC-6C1, 1992 Bankr. LEXIS 1563, at *34-35 (Bankr. M.D. Fla. Oct. 2, 1992) (prohibiting conferences while a question is pending but otherwise permitting conferences). | | | | | ○ | Other courts have taken the position that counsel can engage in discussions during recesses only if the consultation is initiated by the witness and not by counsel, which is the position set forth in the Local Rules for the Southern and Eastern Districts of New York (see supra). See Murray v. Nationwide Better Health, No. 10-3262, 2012 U.S. Dist. LEXIS 120592, at *12-13 (C.D. Ill. Aug. 24, 2012) (“[T]his Court holds that defense counsel may have a private conference with [the witness] during a recess that counsel did not request (and so long as a question is not pending), during the hour break already scheduled by the Court, and at any time for the purpose of determining whether a privilege should be asserted.”); Okoumou v. Horizon, No. 03 Civ. 1606 (LAK) (HBP), 2004 U.S. Dist. LEXIS 19120, at *5 (S.D.N.Y. Sept. 23, 2004) (“[C]onsultation between counsel and a witness at a deposition raises questions only when the consultation is initiated by counsel.”). | | ○ | Other courts have held that following the start of a deposition, communications must be limited to only ascertaining whether a response would be privileged. See Coyote Springs Inv., LLC v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 347 P.3d 267, 273 (NV 2015) (supra). In Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), the Court held, “once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.” Id. at 528. Observing that conferences during a deposition “tend to disrupt the question-and-answer rhythm of a deposition an dobstruct the witness’s testimony,” the court announced a rule prohibiting conferences, even during recesses. Id. at 530. More recently, a Pennsylvania court, following Hall, established concrete rules for future depositions in light of the dispute that arose between the parties. The dispute concerned communications with witnesses during breaks in the depositions. See Dalmatia Imp. Grp., Inc. v. Foodmatch, Inc., 2016 U.S. Dist. LEXIS 145991, at *17-18 (E.D. Pa. Oct. 21, 2016). Specifically, the court held that moving forward: “(1) counsel will not communicate with deponents during breaks regarding the substance of their deposition testimony other than to discuss the assertion of a privilege;” (2) “the deposing party may inquire of a witness regarding whether he or she discussed the substance of his or her testimony with counsel during breaks in the deposition;” and “(3) if the deponent testifies that he or she did have such discussions with counsel, the deposing party may question the witness regarding the communications with counsel that related to the substance of the deponent’s testimony.” Id. | | ○ | As a general principle, courts agree that a recess and/or communications while a question is pending are improper. In In re Neurontin Antitrust Litig., No. 02-1390(FSH), 2011 U.S. Dist. LEXIS 6977 (D.N.J. Jan. 24, 2011), the Court highlighted as inappropriate the following which occurred during a deposition and non-monetary sanctions were awarded: Q: Is it your understanding that a particular allegation has to be in the Information in order for Pfizer to admit a particular allegation? A: Yes. [Sanctioned Counsel]: Hold on a moment Counsel. [Plaintiffs’ Counsel]: I’d like the record to — are you having a discussion with counsel? [Sanctioned Counsel]: Yes, because I — actually let me state a belated objection since you were calling for a legal conclusion. We’ll go back over this. Let’s take a two-minute break.[Break ensues] [Sanctioned Counsel]: Joe, would you read the last question again, and the answer? [Record read.] A. I’d like to add to that. In addition to what’s in the Information, the company and its lawyers does an assessment beyond what’s just in the Information to make those determinations. Id. at *47-48 n.17. |
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| • | . Attorney-Client Privilege: Courts are divided on whether communications between an attorney and client during the course of a deposition – even during breaks, recesses, and/or lunch – are privileged, with the caveat that communications to determine whether or not a response would be privileged are universally protected. | ○ | Many courts have taken the position that communications between a client and attorney are privileged so long as they occur during a break or recess, and so long as no question is pending. See, e.g.,Pia v. Supernova Media, Inc., No. 2:09-CV-840 CW, 2011 U.S. Dist. LEXIS 140396, at *11-12 (D. Utah Dec. 6, 2011) (“[T]he truth finding function is adequately protected if deponents are prohibited from conferring with their counsel while a question is pending; other consultations, during periodic breaks, luncheon and overnight recesses, and more prolonged recesses ordinarily are appropriate.”) (quoting McKinley Infuser v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001)); Gibbs v. City of New York, No. CV-06-5112(ILG)(VVP), 2008 U.S. Dist. LEXIS 22588 (E.D.N.Y. Mar. 21, 2008) (applying privilege analysis to communications between counsel and client during recess in deposition); Henry v. Champlain Enters., 212 F.R.D. 73, 92 (N.D.N.Y 2003) (noting that disclosure of communications between client and attorney during a break “may truly intrude upon the attorney-client privilege and the work product doctrine”). | | ○ | Conversely, other courts have taken the position that once a deposition starts, no communications between an attorney and a client are privileged, except to the extent that such communications are to determine privilege. The seminal case for this approach is Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), wherein the Court held that “[t]o the extent that such conferences do occur . . . [they] are not covered by the attorney-client privilege, at least as to what is said by the lawyer to the witness. Therefore, any such conferences are fair game for inquiry by the deposing attorney to ascertain whether there has been any coaching and, if so, what.” Id. at 529 n.7; See also Wei Ngai v. Old Navy, No. 07-5653 (KSH)(PS), 2009 U.S. Dist. LEXIS 67117, at *16 (D.N.J. July 31, 2009) (“[C]ommunications between the client and counsel during breaks in an ongoing deposition, other than to discuss a privilege, are not privileged.”); Craig v. St. Anthony’s Med. Ctr., No. 4:08CV00492 ERW, 2009 U.S. Dist. LEXIS 19909, at *4 n.1 (E.D. Mo. Mar. 12, 2009) (where attorney had been accused of coaching, the court held that future conferences during depositions, besides to ascertain privilege, would not be privileged); Holland v. Fisher, 1994 Mass. Super. LEXIS 12, at *18-19 (Mass. Super. Ct. Dec. 21, 1994) (following Hall and noting that where party did not state on the record that conference was to establish privilege, and what result was, privilege as to the conference was waived). | | ○ | Other courts have ordered an in camera conference to determine whether the attorney client privilege can be asserted to protect a conference during a deposition. In LM Ins. Corp. v. ACEO, Inc., 275 F.R.D. 490 (N.D. Ill. 2011), counsel for the deponent interrupted the examiner while a question was pending, stating that he wanted to confer with his client (the deponent). The conference lasted nearly thirty minutes. When the examiner re-asked the pending question, the deponent radically changed her testimony but denied that it was due to instructions from her counsel. The court ordered that the deposition resume under judicial supervision in the courtroom, and that an in camera conference be held to determine whether the attorney-client privilege attached to the contested communication between counsel and the deponent. Id. at 492. |
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| • | Even where courts recognize that attorney-client communications during breaks are generally privileged, they have taken differing views on whether an attorney’s coaching of a witness during a break is privileged. | ○ | Compare Haskell Co. v. Georgia Pacific Corp., 684 So.2d 297, 298 (Fla. Ct. App. 1996) (“There is no recognized exception to the privilege for a communication between an attorney and client which occurs during a break in deposition. If a deponent changes his testimony after consulting with his attorney, the fact of the consultation may be brought out, but the substance of the communication generally is protected.”), with In re Flonase Antitrust Litigation, 723 F. Supp. 2d 761, 764-65 (E.D. Pa. 2010) (declining to follow Hall, but nonetheless finding that coaching by an attorney during a recess would not by protected by the attorney-client privilege). |
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| • | None of the Federal Rules of Civil Procedure, the ABA Model Rules, or the New York Rules of Professional Conduct expressly addresses an attorney’s use of misleading questions at a deposition. However, they do set guidelines for appropriate behavior by attorneys both at depositions and more generally. |
| • | Fed. R. Civ. P. Rule 30(d)(3)(A) governs a parties’ ability to move to terminate or limit a deposition. Such is appropriate where the deposition “is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party …. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.” |
| • | ABA Model Rule 4.4(a) and New York Rule of Professional Conduct 4.4(a) set general guidelines regarding attorney conduct. | ○ | ABA Model Rule 4.4(a) provides that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” | | ○ | New York Rule 4.4(a) provides that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or harm a third person or use methods of obtaining evidence that violate the legal rights of such a person.” |
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| • | ABA Model Rule 8.4(c) and New York Rule of Professional Conduct 8.4(c) are identical. | ○ | Both provide that it is “professional misconduct” for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . .” |
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| • | Some jurisdictions have developed rules prohibiting or limiting the use of misleading questions at depositions. | ○ | For instance, Rule 199.5(h) of the Texas Rules of Civil Procedure states that “[a]n 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.” Additionally, Rule 199.5(f) provides that an attorney may instruct a witness not to answer a question that “for which any answer would be misleading . . . .” |
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| • | The ABA advises that when faced with an adversary asking misleading questions, counsel “should object to and identify the examining counsel’s improper behavior on the record.”2 | ○ | In doing so, the ABA relies on Moore’s Federal Practice § 30.43, which states: “When faced with misleading questions by the examining attorney, counsel defending the deposition should be permitted to identify counsel’s misleading behavior . . . and correct the record.” 7 Moore’s Fed. Prac. § 30.43 (2012); See also Stoffregen v. Luu, 2014 Cal. App. Unpub. LEXIS 6460, at * 12 (CA App. Sept. 12, 2014) (indicating that if a deponent is asked confusing or misleading questions, the party could correct the transcript, correct or bring a motion to suppress the deposition in its entirety) (citing Code Civ. Proc, § 2025.520 (b), (c), (g)). |
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| • | The ABA additionally cautions that where an attorney engages in misleading questions, the attorney runs the risk that the deposition might be terminated and/or limited under Fed. R. Civ. P. 30(d)(3), if such questions are “made in bad faith, to annoy or embarrass the witness, or are otherwise oppressive . . . .”3 | ○ | Webb v. CBS Broadcasting, Inc.,No. 08 C 6241, 2011 U.S. Dist. LEXIS 3458, at *17 (N.D. Ill. Jan. 13, 2011) (deposition questions outside of scope of judicial order and other “bizarre” and harassing questions “went over the line in a manner that unreasonably annoyed, embarrassed, or oppressed the witnesses” and terminated the depositions). | | ○ | Smith v. Logansport Comm. School, 139 F.R.D. 637, 646 (N.D. Ind. 1991) (suggesting that duplicative questions, if asked in “bad faith,” could constitute basis to terminate deposition). |
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