Consider a too-common dispute: a deposing attorney fumes over production details, questions grow sharper, and the defending attorney terminates the deposition early. But in a 43-page order addressing that situation, a magistrate judge declared that the parties had been “chasing each other into a spiraling race to the bottom of civility” and imposed sanctions: a two-hour follow-up deposition of the same witness, in the magistrate judge’s own chambers, under the magistrate judge’s supervision. ABA Litigation Section leaders view the order in Boulder Falcon v. Brown as a cautionary tale to practitioners: the path back from “incivility’s rocky bottom” can be a grueling one.
Attorneys Tangle in Jet Suit
In March 2021, the plaintiff purchased an equity interest in a private jet. Less than a year later, the defendant—another owner of the jet—allegedly directed that the jet be flown from Utah to Atlanta without the plaintiff’s consent. The plaintiff immediately sued in the U.S. District Court for the District of Utah, arguing that the defendant had breached the parties’ ownership agreement.
Thereafter, counsel for the defendant deposed the plaintiff’s president. After hours of questioning, the plaintiff’s counsel lodged several objections, then offered what the court called “a heated response”: “[I]f it keeps up, I’m just going to suspend and we’ll just get an order from the judge that you do the rest of the deposition in front of him.”
Court Enters Sanctions for Bad-Faith Deposition Tactics
That warning proved prophetic, as the plaintiff’s counsel did end the deposition early and moved for a protective order. In the order that followed, the magistrate judge marched through the deposition transcript, often line by line, noting argumentative statements and bad-faith questions. As the court saw it, the parties had found themselves “at the rocky bottom of the incivility spiral.”
The court entered a sanction meant “to maintain standards of civility”: it struck the offending deposition in its entirety and invited the witness and both parties’ counsel to his chambers, where they would take a two-hour replacement deposition. The court explained that it would preside over the deposition, respond to objections as they are made, and “swiftly impose sanctions (including contempt of court) for any unprofessional or uncivil conduct.” The court closed with an admonition: if what happened at previous deposition happened again paying attorney fees may be “the lesser of the offending counsel’s worries.”
Though it was the defendant’s counsel taking the deposition, the court’s reprimands reached the plaintiff’s counsel as well. “The plaintiff’s counsel seemed to be trying his best to deal with a tough situation,” opines Paula M. Bagger, Boston, MA, cochair of the Litigation Section’s Commercial & Business Litigation Committee. “What may have helped was to take the same action, but sooner, by saying ‘hold the phone’ and recognizing the parties’ misunderstanding,” Bagger adds.
Tiff Stems from Document Production Misunderstanding
The root of the parties’ misunderstanding, in the court’s view, was a gap in e-discovery literacy. Though the plaintiff had produced “load files” to streamline review of a large document production, it did not inform the defendant of that fact. The defendant’s counsel therefore saw the plaintiff’s production as “a randomized, unorganized, and duplicative mess,” according to the court.
This case may be an example of a lawyer’s technical limitations giving rise to unprofessionalism. “The defendant’s counsel based his conduct on a faulty premise, a real mistake for someone so experienced,” offers James D. Abrams, Columbus, OH, cochair of the Section’s Commercial & Business Litigation Committee. “The problems presented could have been avoided if he had just sought assistance with those load files. An attorney who doesn’t have that competency needs to seek it out.”
Court Exasperated by Failure to Meet and Confer
In the court’s view, the ill-tempered deposition was doomed from the start. The counsel’s questions were rarely answered with anything that could be deemed useful because they were merely asked to highlight what anyone familiar with load files knows—without discovery review software, they are extremely difficult to decipher, noted the court. “If a case exists showing why the federal and local rules require counsel to promptly meet and confer, it is the situation posed here,” the court explained, stressing that “the requirement to meet and confer is neither optional nor a meaningless formality, [but] a check against an erroneous path to action by causing parties to take a hard look at their viewpoints.”
Section leaders echo that sentiment. “I appreciate courts wanting meet-and-confer efforts to be more substantial, particularly when parties are not inclined to budge and when objections become standard practice,” concurs Joseph B. Isenberg, Miami, FL, a member of the Section’s Pretrial Practice & Discovery Committee. “Fighting with opposing counsel is the worst part of the job,” Abrams laments, “and there’s no reason for it.”
Bagger offers practical advice to beleaguered counsel: “Your local rules likely have meet-and-confer mechanisms baked in. If something looks off, before you assume the untoward, talk.”
Hashtags: #lawyerfight; #ediscovery; #sanction
- Manuel A. Cornell, “Deposition (Mis)Conduct: To Object, to Instruct, or to Simply Shut Up,” Minority Trial Lawyer (Mar. 25, 2020).
- Andrew Fesler, “When Asked to Produce ESI in a Particular Format, Comply or Object, but Don’t Ignore the Request,” Pretrial Prac. & Discovery (June 30, 2017).
- Nicholas E.O. Gaglio & Aaron J. Feigenbaum, “Satisfying the ‘Meet and Confer’ Requirement in Federal Court,” Pretrial Prac. & Discovery (Jan. 28, 2013).
- Mackenzie C. Schott, “The Far Reach of the Courts' ‘Inherent Power’ to Sanction Misconduct,” Mass Torts Litig. (June 30, 2016).
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