March 25, 2020 Article

Deposition (Mis)Conduct: To Object, to Instruct, or to Simply Shut Up

A deposition should not be treated as if you were practicing law in the Wild West.

By Manuel A. Cornell

If you have ever attended a deposition in any capacity—as the attorney taking the deposition or as the witness being deposed—you are probably familiar with the feeling of the practice of law in the Wild West. This article will discuss some of the deposition rules, the (mis)conduct, and some of the ways in which the court intervenes when it gets out of hand. This is only the tip of the iceberg, and lawyers should always stay abreast of the rules, the case law, and their local rules.

The Rules

Deposition conduct is generally governed by Federal Rule of Civil Procedure 30:

Rule 30. Depositions by Oral Examination

. . .

(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

(1) Examination and Cross-Examination. 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.

. . .

(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent 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).

. . .

(d) Duration; Sanction; Motion to Terminate or Limit.

(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(2) Sanction. The court may impose an appropriate sanction— including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.

(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.

(C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses.

The (Mis)conduct

More often than not, lawyers find themselves arguing over the interpretation of rule 30. Of course, lawyers must zealously advocate for their clients. However, there is a fine line between zealous advocacy and crossing over to the inappropriate obstruction of the rules. The latter prevents the flow of discovery, creates a destructive battle, and does nothing more than insult and annoy an opposing party. Sadly, while this improper behavior is a lawyer’s way of attempting to twist the rules for their benefit or the benefit of their client, many other lawyers do this because this is the way they were taught!

Objections. “An objection at the time of the examination . . . must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Fed. R. Civ. P. 30(c)(2). One might read this rule and think, “of course, the rule is clear.” However, such is not the case. In fact, many courts throughout different jurisdictions interpret this rule differently and some might even have local rules interpreting it as well.

For example, the U.S. court for the District of Minnesota in the case of Bores v. Pizza highlighted the lower Court’s order regarding the parties’ (mis)conduct,

As a general rule, objections are supposed to limited to the form of the question, and the examination is to proceed subject to the objection. See Fed. R. Civ. P. 30(c).

. . .

In the future, counsel is reminded that if he seeks to make an objection, it must be stated in a concise fashion (e.g. “objection, question calls for speculation”; “objection, lack of foundation”; “objection, question is confusing”; “objection, assumes facts not in evidence”) and avoid engaging in a speech or colloquy that amounts to coaching the witness on what is the problem with the question or how he or she should answer it.

No. 05-2498, 2007 U.S. Dist. LEXIS 106868, at *104–05 (D. Minn. Jan. 25, 2007).

Similarly, in the case of Sec. Nat’l Bank of Sioux City v. Abbott Labs., the court for the Northern District of Iowa stated,

In my view, objecting to “form” is like objecting to “improper”—it does no more than vaguely suggest that the objector takes issue with the question. It is not itself a ground for objection, nor does it preserve any objection. Instead, “form” objections refer to a category of objections, which includes objections to “leading questions, lack of foundation, assuming facts not in evidence, mischaracterization or misleading question, non-responsive answer, lack of personal knowledge, testimony by counsel, speculation, asked and answered, argumentative question, and witness’ answers that were beyond the scope of the question.”

. . .

Given that “form” may refer to any number of objections, saying “form” to challenge a leading question is as useful as saying “exception” to admit an excited utterance.

. . .

I agree with my colleague, Magistrate Judge Scoles, in his analysis of this issue:

[Some] contend that the objection should be limited to the words “I object to the form of the question.” The Rule, however, is not so restrictive. Rather, it simply provides that the objection must be “stated concisely in a nonargumentative and nonsuggestive manner.” . . . [T]he general practice in Iowa permits an objector to state in a few words the manner in which the question is defective as to form (e.g., compound, vague as to time, misstates the record, etc.). This process alerts the questioner to the alleged defect, and affords an opportunity to cure the objection.

. . .

I recognize, however, that not all courts share my views regarding “form” objections. In fact, some courts explicitly require lawyers to state nothing more than unspecified “form” objections during depositions.

299 F.R.D. 595, 601–04 (N.D. Iowa July 28, 2014) (quoting NGM Ins. Co. v. Walker Const. & Dev., LLC, No. 1:11-CV-146, 2012 U.S. Dist. LEXIS 177161, at *2 (E.D. Tenn. Dec. 13, 2012)), rev’d on other grounds by 800 F.3d 936 (8th Cir. 2015). 

As retired Judge Bennett from the Northern District of Iowa noted in Abbott Labs., not all courts agree with his interpretation of the rules on deposition objections. Some courts adhere to the rule that objections should be limited to “the form of the question.”

However, courts often agree that anything beyond these recommended objections is inappropriate. For example, it is common for layers to follow their otherwise proper objections with “you can answer if you know” or something similar. This is improper. Of course, after hearing such an objection, a smart witness will likely respond with “I don’t know.”

Instruction to not answer the question. During a deposition, although the rules mandate a deponent must answer all questions posed, an attorney is sometimes able to instruct the deponent not to answer the question or even suspend the deposition, but “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)”—a motion to terminate or limit. Fed. R. Civ. P. 30(c)(2).

This is the most entertaining part of deposition (mis)conduct. It is when lawyers defending a deposition suddenly instruct their witness not to answer the question on the wrong grounds—sometimes even on the right grounds—that the deposition becomes heated. More often than not, attorneys instruct their witness not to answer on the basis of relevance. This is improper. See Van Stelton v. Van Stelton, No. C11-4045-MWB, 2013 U.S. Dist. LEXIS 145999, at *40 (N.D. Iowa Oct. 9, 2013) (citing Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995); Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 591 (S.D. Tex. 2011); In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 619 (D. Nev. 1998); Int’l Union of Elec. Radio and Mach. Workers v. Westinghouse Elec. Corp., 91 F.R.D. 277, 280 (D.D.C. 1981)).

The following quote is an entertaining example of how a deposition can quickly turn sour (some foul language has been omitted):

Q. (By Mr. Johnston [Delaware counsel for QVC]) Okay. Do you have any idea why Mr. Oresman was calling that material to your attention?
MR. JAMAIL: Don’t answer that. How would he know what was going on in Mr. Oresman’s mind? Don't answer it. Go on to your next question.

MR. JOHNSTON: No, Joe --
MR. JAMAIL: He’s not going to answer that. Certify it. I’m going to shut it down if you don’t go to your next question.

MR. JOHNSTON: No. Joe, Joe --
MR. JAMAIL: Don’t “Joe” me, . . . . You can ask some questions, but get off of that. I’m tired of you. You could gag a maggot off a meat wagon. Now, we’ve helped you every way we can.

MR. JOHNSTON: Let’s just take it easy.
MR. JAMAIL: No, we’re not going to take it easy. Get done with this.

MR. JOHNSTON: We will go on to the next question.
MR. JAMAIL: Do it now.

MR. JOHNSTON: We will go on to the next question. We’re not trying to excite anyone.
MR. JAMAIL: Come on. Quit talking. Ask the question. Nobody wants to socialize with you.

MR. JOHNSTON: I’m not trying to socialize. We’ll go on to another question. We’re continuing the deposition.
MR. JAMAIL: Well, go on and shut up.

Paramount Communications v. Qvc Network, 637 A.2d 34, 53–54 (Del. 1994).

The Court Intervention

Judges have ample discretion when dealing with deposition (mis)conduct. See Hall v. Clifton Precision, 150 F.R.D. 525, 527 (E.D. Penn. 1993) (citing Fed. R. Civ. P. 16, 26(f), 30, 37(a)) (“Taken together, Rules 26(f)30, and 37(a), along with Rule 16, which gives the court control over pre-trial case management, vest the court with broad authority and discretion to control discovery, including the conduct of depositions.”).

In imposing sanctions under either Rule 30(d)(2) or my inherent power, I need not find that Counsel acted in bad faith. “[T]he imposition of sanctions under Federal Rule[] of Civil Procedure 30(d)(2) . . . does not require a finding of bad faith.” GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 196 (E.D. Pa. 2008). Rather, the person sanctioned need only have “impede[d], delay[ed], or frustrate[d] the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). And only the most extreme sanctions under a court’s inherent power—like assessing attorney’s fees or dismissing with prejudice—require a bad-faith finding. See Chambers, 501 U.S. at 45–46 (noting that “a court may assess attorney’s fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons” (citations and internal quotation marks omitted)); Stevenson v. Union Pac. R. Co., 354 F.3d 739, 751 (8th Cir. 2004) (“A bad faith finding is specifically required in order to assess attorneys’ fees.” (citations omitted)); Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1207 (8th Cir. 1983) (“Dismissal with prejudice is an extreme sanction and should not be imposed unless the default was wilful or in bad faith.”).

Sec. Nat’l Bank of Sioux City, 299 F.R.D. at 599–600.

As such, judges often get creative with their response to the (mis)conduct. For example, in Caroll v. Jaques, a case from the Eastern District of Texas, the judge imposed the following sanctions:

While the court’s fine addresses Jaques’s abusive behavior at the deposition as a whole, the court arrived at the $7,000 figure by focusing on Jaques’s most egregious language. The $ 7,000 amount was calculated by assessing fines of: $500 for each of the four times Jaques referred to Plaintiff’s counsel as either an “idiot” or an “ass”; $1,000 for Jaques’s suggestion during the deposition that Plaintiff’s counsel “ought to be punched in the goddamn nose”; $1,000 for each of the three times Jaques called Plaintiff’s counsel a “slimy son-of-a-b****”; and $1,000 for Jaques’s parting words to Plaintiff’s counsel, which were “F[***] you, you son-of-a-b[****].”

926 F. Supp. 1282, 1293 (E.D. Tex. 1996).

Despite any deposition (mis)conduct, the show must go on! Unfortunately, sometimes animosity between the parties, including their attorneys, is so bad that judges appoint a special third party to oversee depositions:

The Court has considered the request, and finds that in light of (1) the numerous ongoing and continuing disputes that have arisen at nearly every deposition taken in this case to date, (2) the numerous informal telephone, email, and letter requests from counsel for the parties requesting judicial intervention during the depositions, (3) the strained relationship between such counsel and their inability to cooperate with each other at depositions, as reflected by the foregoing orders, the instant case is an appropriate one for the appointment of a special master for depositions. The Court further finds that the appointment of a special master is likely to facilitate the prompt, efficient, and orderly conduct of depositions in this case, is likely to minimize further deposition disputes, and outweighs the expense to the parties.

Jadwin v. Abraham, No. 1:07-cv-00026-OWW-TAG, 2008 U.S. Dist. LEXIS 116780, at *18–19 (E.D. Cal. Aug. 22, 2008).

The Conclusion

Depositions are not supervised by a judge the way court hearings or trials are. This does not necessarily mean that a deposition should be treated as if one was practicing law in the Wild West. Lawyers should read the rules, relevant case law, their local rules, and most importantly, know what rules their judge follows.

Of course, knowing the rules and being able to follow them is half of the equation. Lawyers should also be prepared to encounter opposing counsel who either do not know the rules, do not care to follow them, or simply have been trained in a manner that does not conform to the rules. 

Manuel A. Cornell is an attorney in Dorsey & Whitney LLP’s Commercial Litigation group in Des Moines, Iowa. 

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).