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“You, Mr. Churchill, are drunk,” a woman told the prime minister, or so the story goes. Churchill eyed his antagonist carefully: “Well, madam, I suppose that is so. But in the morning, I shall be sober, while you will still be ugly.” The fine art of insult. We have all been there. We have taken depositions, we have defended depositions, in which one side � or both � engage in insults, sometimes with calculation, but more often simply as a byproduct of the heavy emotions that accompany the warfare of litigation. And because we are warriors, we will not back down when insults are hurled at us; we meet insult with rejoinder, tit for tat. Our opponent insists upon asking outrageous, insulting questions. Of course, we object, we speechify on the record, we question the educational and genealogical credentials of anyone so base as to ask such stupid questions, and finally, when we can take no more, we instruct our witness not to answer. We have been provoked, and we have met insult with insult. Who can question that we have acted properly? Um, well, the court can. And a recent 7th U.S. Circuit Court of Appeals decision makes it clear that courts will not simply question � they will sanction offending lawyers. It is not proper to instruct a witness not to answer Redwood v. Dobson, 2007 U.S. App. Lexis 2606 (7th Cir.), did not exactly make new law, but it will almost certainly make waves. The law has pretty much always been that it is improper to instruct a deponent not to answer questions, no matter how outrageous the questions might be. But the Redwood court added teeth to that law by imposing personal disciplinary sanctions against all the lawyers, even those who the court found had been provoked. It is proper to instruct not to answer a question that would reveal privileged information, since the privilege would be lost if the answer were given. See, e.g., Mendenhall v. American Booksellers Ass’n, 1990 U.S. Dist. Lexis 5153, 3-6 (S.D.N.Y. 1990). But what about other objections? In Prudential-LMI Commercial Ins. Co. v. Windmere Corp., 1995 U.S. Dist. Lexis 1129, 3-6 (E.D. Pa. 1995), the court found that there is a conflict of authority “concerning the propriety of instructing a witness not to answer where the basis of the objection is other than a claim of privilege.” One view is that an attorney’s instruction not to answer such questions “is highly improper: A counsel’s appropriate course of action is either to note the objection on the record and allow the answer or to move for a protective order pursuant to F.R.Civ.P. 30(d).” The other view is that “a deponent need not answer if the objection is that the question is irrelevant, argumentative, or misleading.” The Prudential court opted for the second view, concluding that there is “no more need for a deponent to seek a protective order for every question when a dispute arises than there is need to seek a motion to compel an answer for each unanswered question.” See also In re Folding Carton Antitrust Litigation, 83 F.R.D. 132, 134-135 (N.D. Ill. 1979), (“refusals to answer properly came only with argumentative and misleading questions . . . to the point of harassment”). But while Prudential and Folding Carton represent a different view, it is a trickle compared to the mainstream authority that refusals to answer are not proper. Numerous district courts and every appeals court that has considered the subject has held that “if an attorney has an objection to the questions being asked of his client, he should place it on the record so that the evidence can be taken subject to such objection. “If counsel believes that discovery procedures are being conducted in bad faith or abused in any manner, the appropriate action would be to present the matter to the court by motion under rule 30(d). It is highly improper, however, for an attorney to instruct a deponent not to answer nonprivileged questions.” Howell v. Std. Motor Prods., 2001 U.S. Dist. Lexis 5295, 7-10 (N.D. Tex. 2001) (citing Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995); Eggleston v. Chicago Journeymen Plumbers’ Local Union, No. 130, 657 F.2d 890, 902 (7th Cir. 1981); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977).) It is not simply improper to instruct a witness not to answer a nonprivileged question, it is highly improper. Tsk, tsk. But highly improper or not, the consequences have not exactly been earthshaking. The Howell court, for example, found that the instructions were highly improper, especially because the deponent � the plaintiff himself � who refused to answer the questions had expired by the time the matter was brought to the court’s attention. The court determined that an appropriate sanction would be to bar testimony on the subject matter of the unanswered questions, but since that subject matter did not affect any of the causes of action that had been asserted, it does not appear that the sanction had any real meaning. In Lapenna v. Upjohn Co., 110 F.R.D. 15, 19 (E.D. Pa. 1986), the court found that instructions not to answer were improper, but “it would be a waste of time and effort for me to require a witness to answer a question that I find properly objectionable simply because counsel improperly instructed the witness not to answer.” The only sanction imposed was the cost of re-deposing the witness via telephone for the few questions the court found to be proper. In Mendenhall v. American Booksellers Ass’n, 1990 U.S. Dist. Lexis 5153, 3-6 (S.D.N.Y. 1990), the court found that none of the objections that led to instructions and refusals not to answer had merit; the witness was ordered to answer all of the questions when the deposition was resumed. But the court imposed no sanction. Similarly, in In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 627, 629 (E.D. Mich. 1989), the court determined that counsel improperly instructed a witness not to answer questions, but imposed no sanctions apart from ordering that the deposition be reconvened. So, let’s sum up the law pre- Redwood. The minority view is that instructions not to answer a nonprivileged question are proper if the questions are harassing and insulting. The majority view is that such instructions are improper � highly improper � no matter how insulting. But under neither view was there much fallout for an improvident instruction. Enter Redwood. ‘Redwood’ described by court as ‘a grudge match’ The 7th Circuit began its opinion by modestly describing the litigation as “a grudge match.” Harvey Welch represented Eric Redwood in a criminal prosecution for battery. After Redwood was convicted, he sought an affidavit from Welch confessing that Welch had supplied ineffective assistance. When Welch refused, Redwood, who is white, publicly insulted Welch, who is black, by calling him various names, including “shoe-shine boy.” A public scuffle led to a civil battery suit by Redwood against Welch and a civil defamation suit by Welch against Redwood; Welch got the state’s attorney’s office to initiate a prosecution of Redwood for a hate crime. Redwood filed a �1983 action against Welch in federal court. With us so far? When Redwood took the deposition of Gerstein, the attorney who had represented Welsh in the state civil litigation, the substance hit the fan. Redwood’s lawyer, Danner, began by grilling Gerstein about his so-called criminal record � mostly vehicular violations. After 30 pages or so, Gerstein spontaneously refused to answer, and his lawyer, Webber, began instructing him not to answer. Danner moved on to Gerstein’s disciplinary history, and whether he had been ordered to obtain psychiatric counseling or anger-management therapy. Webber instructed Gerstein not to answer. Finally, Danner asked “Mr. Gerstein, have you ever engaged in homosexual conduct?” Webber instructed. Webber and Gerstein conferred during a recess, after which Gerstein acquired amnesia and began playing word games with Danner’s questions. Insult met with insult. The 7th Circuit found that “the provocation was clear.” None of these questions, none of these areas of inquiry, was remotely relevant nor had the ability to lead to relevant evidence. The 7th Circuit found that “Danner’s conduct of this deposition was shameful.” Redwood had the temerity to seek sanctions for Gerstein’s refusal to answer the questions, but the district court refused to award any, finding that it was “ludicrous” for Redwood to argue that lawyers may not instruct witnesses not to answer harassing questions. Ah, but not so ludicrous to the 7th Circuit. The court of appeals did not bother to reverse and remand; it simply imposed sanctions on its own. “Mutual enmity does not excuse the breakdown of decorum that occurred at Gerstein’s deposition. Instead of declaring a pox on both houses, the District Court should have used its authority to maintain standards of civility and professionalism . . . .The provocation was clear, but so was Webber’s violation.” The 7th Circuit sanctioned all three attorneys with a censure for conduct unbecoming a member of the bar. Censure. And the lawyer who reacted got the same sanction as the one who provoked. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers (ACTL) and partners at Chicago’s Jenner & Block. Solovy, the firm’s chairman, can be reached at [email protected]. Byman, past chairman of the ACTL Federal Civil Procedure Committee, can be reached at [email protected].

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