Trial lawyers beware: Ongoing relevancy objections are no basis for terminating a deposition, according to one federal court. Even if the objecting lawyers believed that the questioning was intended to further discovery in an unrelated case, they risked sanctions by summarily ending the deposition. Instead, the lawyers should have expressly invoked Federal Rule 30, built a record that the questioning was in bad faith, and turned to the court for a protective order. Having failed to do that, the lawyers were liable for both costs and attorney fees incurred in subsequent motion practice.
The litigants in Black & Decker, Inc. v. Positec USA Inc. were well-known to each other, having previously tried to verdict a separate $54 million trade dress case in the U.S. District Court for the Northern District of Illinois. That earlier dispute was undergoing post-trial briefings as discovery progressed in an unrelated patent case between these same parties and before the same court. During a deposition in the patent case, the plaintiff's counsel questioned the defendant's corporate representative about the product line at issue in the trade dress case. Defense counsel objected that these questions were irrelevant to the subject at hand and ultimately instructed her client not to answer. When the questioning continued along these same lines, defense counsel suspended the deposition for a short break, and upon returning, unilaterally terminated the deposition. She moved thereafter for a protective order, arguing that the plaintiffs were "seeking evidentiary fodder for post-trial motions then pending in the trade dress case" where discovery had long closed.
The district court disagreed and granted the defendant's motion for sanctions.
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