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.