Defending a deposition can be challenging, especially when opposing counsel engages in misconduct or otherwise attempts to circumvent the rules. The legal news is replete with stories of outrageous conduct by attorneys during depositions, leading some to describe the practice as the wild west of litigation.
As tempting as it can be to go tit-for-tat when faced with unscrupulous deposition conduct, failure to adhere to the ethical and procedural rules governing depositions may result in sanctions. Indeed, courts recently have shown more willingness to sanction attorneys for deposition misconduct. The severity of these sanctions vary, but can range from monetary awards to adverse instructions at trial.
To help stay on the right side of the judge, attorneys may find the following considerations useful when preparing for, defending, and reviewing a deposition.
Be Apprised of the Rules
Prior to defending a deposition, it is helpful to review the relevant rules. These can include the permissible scope of depositions, appropriate objections, and allowable motions. Although the judge will generally not be in attendance at a deposition, the committee notes to the Federal Rules advise that “counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.” Fed. R. Civ. P. 30(d) advisory committee notes (1993).
Rule 30 of the Federal Rules of Civil Procedure sets forth permissible objections, which include the officer’s qualifications, the manner in which the deposition is taken, and to the evidence that is solicited or obtained. Rule 30 also provides the circumstances when the defending attorney can instruct the deponent not to answer a question or suspend the deposition to seek a protective order.
Federal district courts often have their own local rules that bear on depositions. Some judges will also have standing orders specifically addressing deposition conduct.
The corresponding Texas Rule of Civil Procedure for oral depositions, Rule 199.5, likewise contains a clear statement that the deposition should be conducted as in open court during trial, and instructs counsel to “cooperate with and be courteous to each other and to the witness.” The Rule further instructs the witness to “not be evasive” and to not “unduly delay the examination.” A consequence for failing to follow the Rule’s gentility requirements is the court’s discretion to permit the admission of such evidence at trial as a reflection on the “credibility of the witness or the testimony.”
Confer With the Deponent at Appropriate Times
When and whether defending counsel is permitted to confer with the deponent varies by jurisdiction. Although most jurisdictions permit an attorney to confer with a witness at any time to discuss privilege issues (W.D. Tex. L.R. CV 30(b)), it can be risky to attempt to influence a witness once a question has been asked, whether through a speaking objection or by engaging in a private conference while a question is pending.
Determine When to Terminate or Suspend the Deposition
Both the Federal and Texas Rules permit a defending attorney to terminate or suspend a deposition if he or she determines it “is being conducted in bad faith,” or otherwise in violation of professional norms or the applicable rules. This safeguard typically only applies once the deposition has begun.
In reviewing whether a defending attorney’s termination of the deposition was appropriate, Texas federal courts have agreed that it was appropriate to suspend a deposition when a questioning attorney employed threats and profanity, as well as when counsel unreasonably remained on the same issue for nearly thirty pages of testimony. On the other hand, a court found that an attorney’s raised voice alone did not warrant terminating the deposition, although it did not condone the conduct. See Rangel v. Gonzalez Mascorro, 274 F.R.D. 585 (S.D. Tex. 2011).
Most defending attorneys considering whether to terminate a deposition do not take that decision lightly. That is because an improper termination may run afoul of the rules and could result in harsh sanctions.
Consider Whether Amendments Are Necessary
Once a deposition has concluded, an attorney’s obligations do not end. Indeed, attorneys’ ethical obligation to ensure that the testimony supplied by their client is truthful may be triggered. Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct provides that, “[a] lawyer shall not knowingly . . . offer or use evidence that the lawyer knows to be false. . . . the lawyer shall take reasonable remedial measures, including disclosure of the true facts.”
Separate to the potential obligation to avoid knowingly supporting a witness offering false testimony, attorneys may be permitted to submit errata sheets or other changes to depositions to correct errors or misstatements. Texas federal courts generally read Rule 30(e) to permit substantive and contradictory changes to deposition testimony, although the original answer will still be part of the record. See Reilly v. TXU Corp., 230 F.R.D. 486 (N.D. Tex. 2005).
While a deposition does not take place in front of the tribunal, some of the same risks inherent in court appearances are present in conducting depositions. Thus, attorneys can consider the preceding issues in helping to ensure that they can zealously litigate their cases without unnecessary exposure.
Shari L. Klevens is a partner at Dentons and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team. Alanna Clair is a partner at Dentons and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”