January 13, 2017 Practice Points

Federal Judge Finds Attorney Conduct Not “Egregious” in Bayer Suit

The attorney had accused plaintiffs’ counsel of “attempting to malign” him and trying to unnecessarily burden the deponent with an additional deposition.

By Eric W. Shannon

A federal judge presiding over a false-labeling class-action suit involving a Bayer AG vitamin product recently declined to intervene in a discovery dispute that included accusations of witness coaching on behalf of Bayer’s lead counsel. Judge William H. Orrick of the U.S. District Court for the District of Northern California found that the allegations against defense attorney Jonathan Cohn of Sidley Austin LLP based on conduct during a deposition were not so egregious as to justify a new deposition.

According to Law360, Judge Orrick stated that Cohn’s questions may have been “numerous” and “occasionally unnecessary.” He conceded that deposition transcript excerpts highlighted by plaintiffs in a letter to the court “would not be included in a trial practice seminar on proper deposition defense.” Nevertheless, Judge Orrick noted, the plaintiffs did not object to closing the deposition, which finished with four hours to spare. Further, the witness was not instructed not to answer any questions.

Cohn had informed the court in December 2016 that all of his objections during the deposition at issue were proper and prompted by objectionable questions asked by opposing counsel. He accused plaintiffs’ counsel of “attempting to malign” him and trying to unnecessarily burden the deponent with an additional deposition.

 

Eric W. Shannon is an associate with Debevoise & Plimpton LLP, New York, New York.


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