January 30, 2019 Practice Points

Keep Calm and Carry on the Deposition

By Brian P. Cadigan

The Court of Chancery of Delaware recently admonished an attorney for misconduct during a deposition that the court viewed as “endanger[ing] the administration of justice,” serving as an important reminder to keep one’s composure in check during contentious depositions.

In LendUS, LLC v. Goede, et al., the court recognized the “pressures and frustrations of practice” and that “none of our own eyes [are] timber-free.” No. CV 2018-0233-SG, 2018 WL 6498674, at *1 (Del. Ch. Dec. 10, 2018). Nevertheless, when “gamesmanship and incivility [become] a drag on justice” and affect the “ability to perform the core functions of a justice system,” the court must take action. Id.

There, plaintiff LendUS, LCC, a mortgage lender, sued former LendUS employees John Goede and John Schrenkel for breach of contract, breach of fiduciary duty, and tortious interference with contract. Id. at *2. Plaintiff alleged that defendants left LendUS, joined another mortgage lender, and then sought to recruit LendUS’s employees in violation of defendants’ contract with LendUS. Id. at *2, *3.

In the course of discovery, defendants took the deposition of LendUS employee Michael Perel, during which plaintiff’s counsel instructed Mr. Perel not to answer certain questions. Id. Instead of resolving the dispute with counsel or the court, “[u]nfortunately, [Defendants’ counsel] took another approach.” Id. at *4.

The court reviewed the deposition transcript and videotape of the deposition, which made it clear that defendants’ counsel “took a hostile tone toward the Plaintiff’s attorney,” “repeatedly interrupted” him, questioned whether he was actually admitted to practice in Delaware, and questioned whether he understood Delaware law. Id. Defendants’ counsel further referred to Plaintiff’s counsel as “Egregious Steve” throughout the deposition. Id.  The court concluded that defendants’ counsel “badgered and belittled” plaintiff’s counsel. 

Additionally, after a break, defendants’ counsel asked whether plaintiff’s counsel had washed his hands after using the restroom, and informed Mr. Perel that he would talk with “little words so that [Plaintiff’s counsel] can understand.” Id. at *5. Along with inappropriate language, defendants’ counsel “raised his hand and made yapping gestures toward [Plaintiff’s counsel],” and “leaned across the table and [bared] his teeth in an aggressive and exaggerated grimace while [Plaintiff’s counsel] was speaking.” Id.

Defendants’ counsel similarly harassed the deponent, as he “tenaciously inquired” about his personal life beyond what was relevant to the lawsuit and engaged in “prolonged questioning on Mr. Perel’s use of alcohol and drugs, despite Mr. Perel’s repeated answers that he does not drink.” Id.  Defendants’ counsel proceeded to call plaintiff’s counsel and Mr. Perel “idiots.” Id. at *6. While defendants’ counsel initially denied using that term, the court later watched the videotape of the deposition and heard the remark.

The court recognized that defendants’ counsel’s “unprofessional antics” appear “not only to be rude, but tactically, so.” Id. at *6, *8. The court forewarned the parties:

the end toward which we as judges and lawyers work—a truthful exposure of the facts in pursuit of justice—is best served by our tradition of respect and civility accompanied by vigorous, not vinegarish, advocacy. The edifice that supports a civil and robust pursuit of truth is stable but not self-maintaining: as with a three-legged stool, withdrawal of support by any of the litigants or by the Court can cause it to topple.

Id. at *7.

The court acknowledged that while “from time to time, otherwise professional and diligent advocates may suffer a momentary loss of composure, which is regrettable, but understandable during a contentious legal proceeding,” defendants’ counsel’s behavior was “a systematic intent to intimidate the witness and to hector opposing counsel.” Id. at *9.

The court awarded LendUS its reasonable attorneys’ fees in bringing a motion for sanctions due to defendants’ counsel’s conduct, as well as its fees in attending the deposition. After the deposition, defendants’ counsel had also filed a motion to withdraw as counsel, which the court granted. The court further referred the matter to the Delaware Office of Disciplinary Counsel to determine whether further action is required. Id. at *10.

Lendus, LLC v. Goede, et al. is an important reminder of the need to maintain one’s composure in deposition. Excessively aggressive litigation can ultimately cause one’s client more harm than good. When going into a deposition in which the opposing counsel might have a tendency for antics similar to those in Lendus, it could prove beneficial to videotape the deposition to have a clear representation of what transpired.

Brian P. Cadigan is an associate at Reed Smith LLP in Los Angeles, California.

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