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Deposition Misconduct

Posted 3 years 53 days ago ago by hesterd@ksbrlaw.com

Discovery—a process intended to facilitate the free flow of information between parties—is now too often mired in obstructionism. Today's “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught.

 

Security Nat. Bank of Sioux City, Iowa v. Abbott Labs., __ F. Supp. 2d __ (N.D. Iowa 2014), 2014 WL 3704277, *1.

This language is from an order of an Iowa federal district court in which district judge Mark Bennett, acting sua sponte, levied sanctions against a reputable, experienced defense attorney because of the attorney’s “obstructionist” conduct throughout multiple depositions.  Specifically, the attorney used “form” objections excessively, many of which stated no recognized basis for objection; attempted to (and successfully) coached the witness on numerous occasions; and frequently interrupted the deposition with attempts to clarify questions posed by the examiner.

In light of this sanctions order, it would behoove attorneys to review the Louisiana procedural rules governing attorney conduct at a deposition.  Because the Louisiana rules are based on the language of the Federal Rules of Civil Procedure, they are useful for attorneys practicing in federal court as well.

Three basic rules govern attorney conduct in a deposition:

1.  Any objection shall be stated concisely and in a non-argumentative and non-suggestive manner.

La. Code of Civ. P. art. 1443(B).

The purpose of this rule is to discourage the practice of using lengthy, speaking objections which are designed to coach the witness or argue with opposing counsel.  Remember, it is the witness, not the lawyer, who answers the questions, and it is the witness who gets to decide whether he or she understands the question.  See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

Moreover, attorneys should only make objections which pertain to errors in the form of the question or to a testimonial privilege.  La. Code of Civ. P. arts. 1455, 1443(D).  Other objections are reserved until trial.

 
2.  Counsel shall cooperate with and be courteous to each other and to the witness and conduct themselves as required in open court.

La. Code of Civ. P. art. 1443(B).

Much like the loss of inhibition people experience when posting on the Internet, attorneys may resort to “abusive and unprofessional conduct” in a deposition because depositions occur without direct judicial supervision.  See Comment (b) to article 1443.

3.  Counsel may instruct a deponent not to answer for only four, limited reasons:

    a.    When necessary to preserve a privilege,
    b.    To enforce a limitation on evidence imposed by the court,
    c.    To prevent harassing or repetitious questions, or
   d.   To prevent questions which seek information that is neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence.

La. Code of Civ. P. art. 1443(D).

Cooperative and courteous conduct in depositions promotes efficiency in the litigation and professionalism in the Bar—goals for which all attorneys should endeavor to achieve.






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