Michael Hoenig

A pithy, to-the-point Opinion and Order by U.S. Magistrate Judge (S.D.N.Y.) Henry Pitman, regarding a lawyer’s instructions to a deponent not to respond to certain questions, was published in the New York Law Journal on October 22. The case name is Law Firm of Omar T. Mohammedi v. Computer Assisted Practice Elec. Mgt. Solutions, No. 17 Civ. 4567 (S.D.N.Y., Oct. 16, 2018). The fracas reminded this writer of how ubiquitous some form of attorney “misconduct” at depositions truly is—covering a wide range of prohibited practices from the relatively benign (but often frustrating for examining counsel and, quite possibly, making proceedings expensive) to grave misconduct calling for sanctions.

In Judge Pitman’s Law Firm case, the plaintiff law firm retained defendant company to perform computer data and back-up services. Defendant copied the data onto an encrypted external hard drive. When plaintiff later received the encryption key, plaintiff claimed breach of contract in that the hard drive showed defendants accessed its data contrary to the Computer Fraud and Abuse Act. At a deposition of one of defendants’ owners—let’s call the witness “G”—the defense attorney instructed G not to answer questions about the hard drive, claiming the questions were improper because the hard drive was not authenticated.

Magistrate Judge Pitman observed, citing lots of federal case law, that the conduct of a deposition is governed by Federal Rule of Civil Procedure 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615”). Unlike trial testimony, however, upon an objection by counsel, “the examination still proceeds” and “the testimony is taken subject to any objection.” FRCP 30(c)(2). The deponent witness may be instructed not to answer “only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” FRCP 30(c)(2) (emphasis added).

Thus, “lack of relevancy” is not a proper ground for instructing a witness not to answer deposition questions. In Law Firm, the defense lawyer’s instructions not to answer because the hard drive was not authenticated were improper. The requirement of authentication is an aspect of “relevancy.” But the Rules teach that instructions not to answer at a deposition on the grounds of relevance are improper. Defense counsel should simply have stated his objection and permitted G to answer the questions. Judge Pitman granted plaintiff’s motion to compel the deponent to testify at a further deposition. However, plaintiff’s application for fees was denied since counsel “could have called my chambers for a ruling during the course of deposition and could, therefore, have avoided the cost of motion practice.”

There’s no dearth of helpful advice by lawyer-writers regarding the proper handling of deposition objections and attorney behavior. (See, e.g., L.P. DiLorenzo & J. Gaal, “Preparing Witnesses for Depositions: Know Your Boundaries”; D. Markowitz & J. Franco, “Sanctions For Deposition Misconduct”; E.A. Albrecht & C. Tompkins, “How To Save A Deposition When Defending Counsel Fights Dirty,” For The Defense (DRI, June 2016); M. Degner & L.C. Hurtado, “Things To Consider Before Counseling During Deposition,” Law 360 (Oct. 3, 2013); N.Y. County Lawyers Association, Program Materials, “Dealing With Difficult Attorneys” (April 29, 2015); T.G. Wilkinson, Jr. & J. Fox, “Encouraging Attorney Civility During Depositions: The Enduring Impact of Hall v. Clifton Precision,” Pa. Bar Ass’n Quarterly, 104 (July 2013); D.J. Pope & E.E. Trull, “How To Take Or Defend A Deposition When Your Opponent Is Difficult,” The Brief, 31 (Summer, 1991).

Misconduct Categories

Given space limitations here, it is not feasible to discuss all aspects of deposition misconduct by attorneys and the abundant case law. Nevertheless, it is important to identify categories of misbehavior and, along the way, the rules that prohibit them. First, courts often have to deal with situations where counsel defending the witness proliferatively objects to the “form” of the examiner’s question. In one federal case, The Security National Bank of Sioux City, Iowa v. Abbot Laboratories, U.S. District Court Judge Mark Bennett noted that counsel objected to the “form” of the examiner’s question at least 115 times and, so, could be found on roughly 50 percent of the pages of two depositions. The “form” objections were sometimes followed by some particularity of the basis such as “speculation” or “narrative.” Sometimes, the “form” objection was used to quibble with the questioner’s word choice—thereby “coaching” the witness to give a desired answer. Often, the stated basis was that “it’s vague and ambiguous.”

Further, attorney “speeches” simply cannot be permitted to accompany objections as to the “form” of deposition questions. The substance and flow of the witness’s testimony would be markedly affected and the transcript would reflect, not testimony, but attorney opinions about the merits of how a particular question was phrased. Objections as to “form” must be stated succinctly.

As authors Emily Albrecht and Christopher Tompkins have written, in federal courts there are 11 grounds on which an objection to the “form” of the question is feasible: (1) compound; (2) asked and answered; (3) overbroad or calls for a narrative; (4) calls for speculation; (5) argumentative; (6) vague or unintelligible; (7) assumes facts not in evidence; (8) misstates the record; (9) calls for an opinion from an unqualified witness; (10) leading where not permitted; and (11) lack of foundation. Boyd v. Univ. of Maryland Med. Sys., 173 F.R.D. 143, 147 n.8 (D. Md. 1997). Thus, the sheer number or variety of these could potentially hamstring deposition practice at large.

A second broad category of deposition misbehavior is “witness coaching.” Lawyer suggestions on how a witness should respond to a question are taboo. Lawyers may not comment on questions in any way that might affect the witness’s answer. Hall v. Clifton Precision, 150 F.R.D. 525, 530-31 (E.D. Pa. 1993); Specht v. Google, 268 F.R.D. 596, 598 (N.D. Ill. 2010) (“objections that are argumentative or that suggest an answer to a witness are called ‘speaking objections’ and are improper under Rule 30(c)(2)”). Often, “speaking” objections tip off the witness to adjust the answer to say he or she doesn’t understand the question.

Sometimes, the speaking objection seeks clarification of the inquiry and demands that examining counsel rephrase the question. Clarification-inducing suggestions are improper. Unless the question is truly so vague or ambiguous that the defending lawyer cannot possibly discern its subject matter, the defending lawyer may not object simply because he finds a question to be vague. Nor may he assume that the witness will not understand the question. The witness—not the lawyer—gets to decide whether he or she understands a particular question. Hall, 150 F.R.D. at 528-29. Only the witness knows whether she understands a question. Further, if defending counsel feels that a deponent’s answer reflects a failure to understand a question, this can be remedied on cross-examination.

A third category of frequent misbehavior can be called “excessive interruptions.” One simple way to gauge whether this has occurred is to count how many times defending counsel’s name appears on the pages of the deposition transcript. So, for example roughly once per page seems unduly excessive; three times a page, such as occurred in the Security National Bank case, surely evidences that counsel’s objections were unnecessary and unjustified. Excessive and unwarranted interruptions are an independent reason to impose sanctions. See Van Pilsum v. Iowa State University, 152 F.R.D. 179, 181 (S.D. Iowa 1993) (sanctioning a lawyer who had “no justification … for monopoliz[ing] 20% of his client’s deposition” and whose objections “were for the most part groundless and were only disputatious grandstanding.”) This category of misconduct can also include so-called “boilerplate objections” containing every objection imaginable. See generally M.L. Jarvey, Note, “Boilerplate Discovery Objections: How They Are Used, Why They are Wrong, and What We Can Do About Them,” 61 Drake L. Rev. 913 (2013) (collecting cases disapproving of boilerplate objections.)

N.Y. Rules

In New York state courts, similar prohibitions apply but the applicable rules that compel restraints on attorney misbehavior are state rules, not federal. A helpful case opinion well-describing the approach in state courts is New York County Supreme Court Justice Eileen Bransten’s decision in Freidman v. Fayenson, 41 Misc. 3d 1236(A) (Sup. Ct. N.Y. Co., Dec. 4, 2013), aff’d sub nom Freidman v. Yakov, 138 A.D. 3d 554 (1st Dep’t 2016). The case involved attorney conduct during two depositions. There were nine instances of instructions to the deponent not to answer the question. Justice Bransten’s opinion reviews each of these episodes and finds all of them improper.

The court observed that New York’s Uniform Rules for the Conduct of Depositions, 22 NYCRR 221, address the limited context in which a deponent may refuse to answer a question when an objection is made. Uniform Rule 221.2 provides that “[a] deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person.” Attorneys may not instruct a deponent not to answer unless the rules provide a basis for doing so.

When a deponent refuses to answer a question, or is so instructed by an attorney, such refusal or instruction “shall be accompanied by a succinct and clear statement of the basis therefor.” Also, where a deponent does not answer a question, the deposition proceeds and “the examining party shall have the right to complete the remainder of the deposition.” (22 NYCRR 221.2) Further, Uniform Rule 221.1(a) provides that objections made at a deposition “shall be noted by the officer … and the answer shall be given and the deposition shall proceed subject to the objections and the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR.” 22 NYCRR 221.1(a) (emphasis by court).

Justice Bransten then turned to the “speaking objections” and other statements by counsel. Uniform Rule 221.1(a) sets forth the general rule providing that “[n]o objections shall be made in a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the [CPLR] would be waived if not interposed, and except in compliance with subdivision (e) of such rule.” The rule also provides that objections “shall be noted” and “the answer shall be given and the deposition shall proceed subject to the objections … .”

Uniform Rule 222(b) provides that every objection “shall be stated succinctly and framed so as not to suggest an answer to the deponent, and at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity.” As to statements that are not objections, the rule also provides that “during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.”

Uniform Rule 221.3 says an attorney “shall not interrupt the deposition for the purpose of communicating with the deponent” unless all parties consent or the communication is made to determine whether the question should not be answered on the grounds set forth in Rule 221.2. Justice Bransten found that improper “speaking” objections were made, that deponents were instructed to leave the room on several occasions, that deponents were helped to answer questions and that other inappropriate attorney statements were made. The court ordered the depositions to continue and awarded costs and attorney’s fees to be paid in equal parts by the objecting attorney and the party. The Appellate Division, First Department, affirmed and upheld the sanctions. Freidman v. Yakov, 138 A.D. 3d 5541 (1st Dep’t 2016).

Another informative guide is New York County Supreme Court Justice George J. Silver’s decision in Rodriguez v. Clarke Worley Goodman, M.D., 2015 N.Y. Misc. LEXIS 2782 (Sup. Ct. N.Y. Co. July 2015). This was a medical malpractice case in which the witness-defending attorney instructed a doctor not to answer several times, made “speaking” objections, and suggested answers for his client through the use of objections to “form.” Justice Silver reviewed the deposition transcripts and found “multiple violations” of the Uniform Rules. The court declined to impose sanctions but did order the depositions to continue. Both Justice Bransten and Justice Silver elaborate the facts and law underlying the violations and, so, readers should study the respective decisions.

Conclusion

Although the complex topic of deposition misbehavior is broad and the variants are many, the common thread running throughout the rules and the case law is: Let the Deponent Testify! With few explicit exceptions, the attorney should not interfere with the witness’s answers or the flow of the examination.

Michael Hoenig is a member of Herzfeld & Rubin.