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.”