March 03, 2015 Articles

Dealing with Difficult Opposing Counsel

Learn how to stave off inappropriate behavior from the other side of the table

By Theresa W. Parrish

Attorneys practicing in federal court have a powerful weapon to stave off inappropriate behavior by opposing counsel (or to measure the consequences of their own). Federal Rules of Civil Procedure Rule 30(d)(2) provides that  “[t]he 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.”

The related commentary to Rule 30(d) notes that “depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.” The commentary confirms that the court can “impose the cost resulting from obstructive tactics that unreasonably prolong a deposition on the person engaged in such obstruction.” This could include the deponent, any party, or any other person involved in the deposition. Finally, counsel are reminded that they “should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”

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