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January 31, 2019 Feature

Deposition: Turning the Tables on Difficult Witnesses (and Counsel)

By Adrian K. Felix, Martin A. Dolan, Rebecca C. Kibbe, and Lori Lustrin

The importance of pretrial depositions cannot be stressed enough. Depositions provide the evidentiary basis for the resolution of most civil disputes, approximately 97 percent of which are settled or dismissed before trial. For the majority of those cases that never see trial, depositions will be the only testimony available; hence, a successful deposition can mean the difference between obtaining a favorable or unfavorable settlement during negotiations and mediation.

Due to their importance, there can be nothing more exacerbating than dealing with the antics of difficult witnesses (and opposing counsel) during the course of a deposition. So how do you stay above the fray and still get the discovery you need?

Federal Rule of Civil Procedure 30

It starts by first understanding and mastering Federal Rule of Civil Procedure 30, which sets forth the written rules for taking depositions, including when a deposition may be taken, for how long a deposition may be taken, the number of permitted depositions per party, the requirements for recording the deposition, and the scope of objections during the deposition.

Examination. Rule 30(c)(1) states that “examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence.” At trial, your opposing counsel never would turn to her client on the stand and remind the client not to speculate or instruct the client to say “I don’t know” if the client does not remember. Nor would your opposing counsel start speaking to (or yelling at) her counterpart during direct or cross-examination. So, there is no reason for lawyers to tolerate such behavior at a deposition.1

Objections. Rule 30(c)(2) states that “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.” A defending counsel, therefore, is fully within her rights at deposition (as at trial) to assert objections on the record during a party’s examination, even when such objections may be numerous.

For example, in Sonix Technology Co. Ltd. v. Yoshida,2 the defendants moved for an additional Rule 30(b)(6) deposition because the plaintiffs counsel objected more than 300 times during the course of the first deposition. The district court denied the defendants’ request, finding that

[a]lthough Plaintiff’s counsel may have been tenacious in his unyielding objections, there is no indication that he coached the witness, or raised completely groundless objections. . . . [C]ounsel did not interject speaking objections or act as an intermediary by interpreting or assisting with answers[] . . . [and] did not frustrate the free flow of the deposition.3

Moreover, the district court found that the defense counsel failed to address the issue on the record during the deposition proceedings and made no effort to suspend the deposition to meet and confer or reach out to the court to intervene.

As discussed below, though, there is a limit to the right to object during examination. Rule 30(c)(2) provides that objections raised during a deposition must be “non-argumentative” and “non-suggestive.” Although the foregoing terms are not defined by Rule 30, many courts read the rule to limit deposition objections to simple, declarative statements, such as “Objection, form,” unless the examiner asks for the basis of the objection.4 Objections for privilege, mischaracterization of earlier testimony, asked and answered, calls for a legal conclusion, and harassment or badgering of the witness also are generally appropriate and necessary to assert during deposition.5 All other objections are generally considered improper and an attempt to frustrate the free flow of the deposition.

Accordingly, the deposing attorney’s primary job at a deposition is to ask questions from the witness and receive answers, and she is expected to continue with her examination and not dwell on or get sidetracked by opposing counsel’s proper objections. If, however, opposing counsel continuously makes improper objections to the point that it is frustrating the purpose of the deposition, then the examining attorney should address the issue on the record and, if necessary, suspend the deposition to seek relief from the court.

Sanctions and other relief. Rule 30(d)(2) makes clear that when a party “impedes, delays, or frustrates the fair examination of the deponent,” the court is expressly authorized to “impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party.” Rule 30(d)(3) further provides that “the deponent or party may move to terminate or limit a deposition on the grounds that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party,” and that a deposition must be suspended to secure such order if the objecting deponent or party so demands.

Federal courts are increasingly policing deposition misconduct through the imposition of sanctions. While the inclination is toward monetary sanctions, courts can impose a wide range of sanctions, and it is within a judge’s discretion to determine the punishment.6

Dealing with Difficult Witnesses

As a litigator and trial attorney, you will inevitably run across difficult witnesses, including those who insist that they “don’t know” or “don’t remember,” are unprepared, and/or are disruptive and combative. While the Federal Rules of Civil Procedure are not very instructive on how to handle such behavior from a deponent, there are still a number of practical ways to combat difficult witnesses, who may or may not even realize that they are, in fact, being difficult.

General guidelines. First, preparedness is always the best offense in dealing with an adverse witness, regardless of whether that witness is intentionally or unintentionally difficult. Know your case, the facts, the documents, and the story that you want to tell. Keep your questions short, and lead witnesses where you want them to go. Short, concise leading questions will give you the best opportunity to ensure that the witness understands the questions posed and will assist in confining the witness to simple yes or no answers.

Along those lines, limit your use of legalese. Most witnesses and jurors, should the testimony ever be played to a jury, do not understand the commonly used legal jargon of lawyers. Nor do witnesses or jurors want to feel like they are being talked down to because they do not understand. So, use simple, straightforward, everyday language; and treat the witness with respect. Maintaining your professionalism is key.

Finally, and most importantly, listen to the witness’s answers. While outlines are great and knowing where you want to go is important, you also need to make sure that you pay attention to what the witness is telling you as it may be helpful not only in gathering information but also in wrangling a difficult witness.

Memory-impaired witnesses. The most common difficult witnesses are those who cannot remember or are extremely forgetful. Whether they truly cannot recall or simply claim that they cannot recall certain events, it is important to learn how to handle these types of witnesses.

Utilizing the short and succinct questioning as described above is one of the most important tools for cross-examination of a forgetful witness. You want to lead such witnesses to yes or no answers rather than providing long-winded, compound questions that can confuse them and easily lead to an “I don’t know” or “I don’t recall” answer. This is also the perfect opportunity to use documents or prior testimony to assist in the examination and refresh the witness’s memory. It is much harder to feign forgetfulness when presented with the answer in black and white.

Sometimes you will not have documents or prior testimony to refresh a witness’s memory. In those instances, try to ask questions about other events that occurred during the relevant time to spark the witness’s memory. For example:

Q: Mr. Jones, do you recall when you went to work at that manufacturing facility?

A: No. It was so long ago, I cannot remember the year.

Q: Do you recall the decade?

A: Maybe in the late ’60s or early ’70s?

Q: Your daughter was born in May 1970, correct?

A: Yes.

Q: Do you recall if she was born before or after you started working at the facility?

A: She was born before, so it must have been the early 1970s.

Providing a little context by using an important date (e.g., the birth of a child, marriage, or even a sporting or political event) often can trigger the memory of a person and assist you in getting the answers that you need.

There will be plenty of times when witnesses still will claim that they cannot recall or do not remember. In those circumstances, ask if there are any people who may be able to provide that information or if there are any documents that would assist the witness in being able to answer the question. If witnesses continue to claim that they do not know or do not recall when presented with reasonable questions to assist them in answering, they will appear untruthful. And, at the end of the day, if you think that the witness has a reason that benefits the witness to be forgetful about important facts or information, make sure to bring that to the attention of the jury.

Unprepared witnesses. Companies have a duty to prepare their designee(s) as to knowledge of the subject matter identified in a Rule 30(b)(6) notice, including information that is reasonably available to them through review of documents within their control, conversations with current or former employees, reading relevant testimony in the matter, or other sources of information.7 The witness who already has some personal knowledge of the topic cannot testify solely from personal knowledge but also must testify about information reasonably known to the deponent.8

But, all too commonly, witnesses show up unprepared and ignorant of noticed topics. Federal courts have developed a body of case law that penalizes corporations that produce witnesses who are either unprepared or uncooperative about topics in a Rule 30(b)(6) notice, as well as those witnesses who may be correctly designated and prepared but have no information about the topics in the notice. Managing both of the aforementioned witnesses may require the use of very different tactics.

In those instances where the witness either is not the correct witness or is the correct witness but is not prepared or is uncooperative, you can demand that the deponent designate another witness, or you can attempt to gain as much information as possible and then move to compel and for sanctions for the time spent deposing the unprepared or wrong witness.9

Where the witness is the correct designee but lacks knowledge concerning a noticed topic, you may be able to bind the organization to that witness’s testimony. Courts, though, remain split on this issue. Some courts have held that if a corporation cannot produce a person with knowledge of the facts in the Rule 30(b)(6) notice, then the corporation will be precluded from introducing evidence about that topic at trial.10 In those instances, you should conduct a basic line of questioning to obtain admissions from the designated witness that (1) he is the correct person to testify regarding the topics in question, (2) he is prepared for the deposition, and (3) he understands that he is speaking for the company/corporation. Some courts will treat an organization like other deponents, meaning that the organization will not be allowed to defeat a summary judgment motion by relying on a declaration that conflicts with its own witness’s deposition testimony.11

Disruptive witnesses. At times in litigation, there will be witnesses whose behavior is completely inappropriate and derails the ability to conduct a deposition, including those who are hostile; impede, delay, or frustrate fair examination; or intentionally provide evasive answers to deposition questions. As set forth in GMAC Bank v. HTFC Corp., such behavior warrants the granting of a motion to compel the continuation of the deposition to take place under the guidance of the court or magistrate, as well as an award for sanctions.12 The most important thing to remember when dealing with such witnesses is to maintain your civility and professionalism. Do not get dragged down to their level or allow yourself to be baited into their game. Oftentimes, simply standing your ground and maintaining your professionalism can be enough to turn the tide of the behavior and move the deposition into a more productive flow. Videotaping the deposition is another effective way to curtail disruptive behavior. However, when you cannot improve the situation or rehabilitate the witness, the best course of action is simply to seek court intervention.

Dealing with Difficult Opposing Counsel

Nowhere is the proverb “Treat others as you would like to be treated” more applicable than in the practice of law. The ABA’s Model Rules of Professional Conduct speak to the standard to which lawyers should adhere in their practice. Civility is and always should be at the core of our profession. Unfortunately, we all know that some attorneys insist on engaging in behavior that frustrates these goals and leads to incivility, and even hostility, throughout the litigation process. At the end of the day, engaging in this misconduct harms everyone involved and distracts from our job.

This section explores the ways in which conflict and incivility can arise in the context of difficult opposing counsel—specifically, how incivility can arise when a lawyer frustrates the deposition process through speaking and coaching objections, bullying, and biases toward attorneys of the opposite sex.

Speaking objector. The speaking objector is the most frequently encountered difficult lawyer at deposition. As previously noted, speaking objections designed to influence a witness’s testimony are not allowed. Under Rule 30(c)(2), deposition objections must be stated concisely and in a nonargumentative and nonsuggestive manner. Attorneys are strictly prohibited from making any comments that might suggest or limit a witness’s answer to an unobjectionable question.

Courts have stated that “the underlying purpose of a deposition is to find out what a witness saw, heard or did—what the witness thinks.”13 A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. After all, “[i]t is the witness—not the lawyer—who is the witness.”14

Some examples of improper speaking objections include the following:

  • “Objection. You can answer if you understand the question.”
  • Instructions to a witness that they may answer a question “if they know” or “if they understand the question” are “raw, unmitigated coaching, and are never appropriate. This conduct, if it persists after the deposing attorney requests that it stop, is misconduct and sanctionable.”15
  • “Objection. Do not guess or speculate.”
  • “An objection that a question calls for speculation is a foundation objection and not a form objection,” according to a federal district court in Kansas. “It also tends to coach the witness to respond that she does not know the answer.” And “[a]n objection to ‘improper foundation’ is a relevance objection and need not be made at the time of the deposition.”16
  • “Objection. The document speaks for itself.”
  • “Objection. Opposing counsel has not previously appropriately laid out the foundational elements to prove that the document he is referring to is an accurate and verifiable document before asking my client this question.”

Along the lines of the above, a unilateral refusal to let a witness respond to a question is inappropriate without a validly stated objection.17 So, too, is a demand by counsel that the deposing attorney explain the relevance of a proffered question.18

If an attorney repeatedly makes speaking objections or overuses objections, remember to ask the attorney to clearly and concisely state the reason(s) for the objection on the record, after which you should remind counsel of the appropriate parameters for objections and respectfully ask that all future objections be made pursuant to those parameters.

Speaking objections are designed to throw an attorney off her game—to distract, frustrate, or anger deposing counsel to impede the discovery process. Remember to remain calm and stay focused on the witness. If opposing counsel is not cooperating, do not get into an argument. Instead, stay focused on discovering all relevant information from the witness because, after all, the show must go on. And if it cannot, you can always halt the deposition pursuant to Rule 30(c)(2) and address the misconduct with the judge.19

Sidebar communicator. Another type of lawyering tactic is the sidebar communicator. Witness coaching has been a subject of debate among courts and commentators for a long time, particularly in the context of communications between an attorney and her client during the course of testimony.

Depending on where your litigation is pending, client communications during testimony can become a huge sideshow that should be avoided at all costs. Knowing the view that your jurisdiction takes on client conferences and breaks is key.

In federal courts in New Jersey and Pennsylvania, attorneys are prevented from consulting with their witness during the course of a deposition except under narrow circumstances, such as a need to determine whether to assert a privilege.20 Hall v. Clifton Precision, a Pennsylvania case, pronounced a rule prohibiting private conferences or communications even during recesses; and it took the position that once a deposition starts, it is to be conducted under the same testimonial rules as at trial.21 Once a witness has been prepared and is on the stand, the witness is on his own; the same can be said for deposition testimony.

The other view taken by courts is what is commonly referred to as the Stratosphere approach. In In re Stratosphere, the court stated that the decision in Hall went too far, and its strict adherence could “violate the right to counsel.”22 Taking the Stratosphere view, some courts do allow communications between counsel and the deponent to proceed

in order to ensure that the client did not misunderstand or misinterpret questions or documents, or attempt to rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness.23

The lessons to be drawn here include the following: (1) practitioners should be aware that any communication with a witness during deposition testimony can be viewed as suspicious, and influencing or coaching a witness during a deposition or a break is improper; (2) courts usually do not look too favorably upon these tactics, especially if they appear to change a witness’s demeanor or testimony; and (3) practitioners need to know how the court in their jurisdiction views communications during deposition testimony and to adhere strictly to those case holdings and rules. Depending on where you practice, sidebar communication conduct may or may not be well received, so knowing the Local Rules of Civil Procedure can help you fight back against suspected witness coaching.

Rambo litigator. To be vigorous does not mean to be disruptively argumentative, to be aggressive is not a license to ignore the rules of evidence and decorum, and to be zealous is not to be uncivil.24

Although most attorneys are professional, civil, and courteous, there are those who choose to take a scorched-earth, winner-take-all, Rambo-style approach that hurts our profession on many levels. The consequences for an attorney on the receiving end of these bullying tactics can be very serious and can include anxiety, depression, and demoralization. The consequences for the bully can also be far-reaching, including reputation damage; sanctions; and, in extreme cases, suspension or disbarment.

For example, in Corsini v. U-Haul International, an attorney mimicked opposing counsel’s speech pattern in a way that suggested an ethnic slur and produced the following exchange:

You’re so scummy and so slimy and such a perversion of ethics or decency because you’re such a scared little man, you’re so insecure and so frightened and the only way you can impress your client is by being nasty, mean-spirited and ugly little man, and that’s what you are. That’s the kind of prostitution you are in.25

This conduct resulted in the court dismissing the plaintiff’s suit.

Also, in a recent case in the U.S. District Court for the Northern District of Illinois, Donaldson Twyman v. S&M Auto Brokers,26 the defendant’s counsel was sanctioned to the tune of $50,000 by Judge Virginia Kendall. In that case, the sanction stemmed from counsel’s defense of an auto dealership accused in a civil suit of selling a used vehicle whose odometer had been rolled back. The court noted that roughly 75 percent of the 200 legal filings in the case concerned defense counsel’s behavior. In the sanctions order, the court stated thus:

Throughout the course of the litigation, the court has observed first-hand Brodsky’s unprofessional, contemptuous, and antagonistic behavior directed at opposing counsel. These have included false accusations and inappropriate diatribes in pleadings, where he repeatedly accused opposing counsel of lying, extortion, attempting to create a false record, and repeatedly requested sanctions without any good-faith basis.27

Judge Kendall also noted that defense counsel had sent “numerous vitriolic emails” to the opposing counsel, calling him “an embarrassment to the profession” and accusing him of being an extortionist. Moreover, in depositions, defense counsel “was confrontational and antagonistic,” cursing several times on the record and making inappropriate attacks against the opposing lawyer, calling him a liar, and accusing him of engaging in a criminal enterprise.28

In addition to the hefty fine (the highest ever in Illinois), the district court ordered defense counsel to take an anger management class and also referred him to the ethics committee of the Northern District of Illinois for consideration of disbarment or suspension from practice in the district.29

Do not allow a bully to gain the upper hand. Doing so will only invite more of the same behavior, creating a cesspool of aggressiveness and incivility. Should nothing deter this behavior, consider reporting the attorney to your disciplinary board. Chances are that you are not the only attorney on the receiving end of this conduct.30 Just like the bully who steals your lunch money, standing up for yourself and involving the appropriate parties are the only ways to stop the misbehavior.

Male-female bullying dynamics. The interplay between male and female attorneys lacks much of the case law that the former three topics share, likely because this subject area is subtle and can be difficult to gauge. There are many issues too substantive to address in this article, so this section only briefly addresses some of the more common scenarios that arise in the male-female attorney context.

It is important to acknowledge that while women in the legal profession today no longer face the challenges that were encountered 25 to 30 years ago, such as the great disparity in numbers, there are still several unique, gender-based issues that they face. Women lawyers, especially young lawyers, are judged and compared to their male counterparts. They also often face subtle (and not so subtle) intimidation and discrimination.

For example, in Claypole v. County of Monterey, the plaintiffs counsel asked the defendant’s counsel not to interrupt her, to which the defendant’s counsel replied, “Don’t raise your voice at me. It’s not becoming of a woman.”31 The court rightfully remarked that

there are several obvious problems with his statement, but, most saliently, defendant’s counsel endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.32

Consequently, the court ordered the defendant’s counsel to donate $250 to the Women Lawyers Association of Los Angeles Foundation, an organization dedicated to women in the legal profession.33

Similarly, in Florida Bar v. Martocci, the Florida Bar sanctioned an attorney with a public reprimand, two-year probation, and costs for demeaning a Puerto Rican female opponent by telling her that her depositions were not conducted according to “girl’s rules,” by calling her a “stupid idiot” and a “bush leaguer,” and by referring to her client as “crazy” and a “nut case.”34 And in Robinson v. Chefs’ Warehouse, the district court sanctioned the defendant’s counsel after rejecting his attempt to justify his deposition misconduct on the grounds that “the female energy in the room was conspiring against him.”35

Comments such as those in Claypole and Martocci not only reflect and reinforce the male-dominated attitude of our profession but also tarnish the image of the legal profession and disgrace our justice system. Short of seeking court intervention, the best way to deal with sexist remarks/undertones during depositions is to (1) calmly but firmly note it for the record by saying, “Counsel, your remarks are entirely inappropriate and unprofessional” and (2) let it roll off your back and proceed unrattled with the deposition as if it does not bother you. The purpose of the commentary is usually to get an advantage by throwing off the examiner, so if you show the offending counsel that the strategy is not working, then he is more likely to stop.

When you look back at the way things used to be and the way in which women were treated and represented in the legal community, it is clear that we have come a long way. That does not mean, though, that there are not some very real issues that continue to be an issue and need to be addressed to make the practice of law equal and welcome for all.


Litigation by its very nature is adversarial. That fact has not impacted the majority of attorneys, who litigate in a very civil manner. As long as we keep the goal of civility with us each day that we practice and maintain the highest degree of professionalism, the legal profession will survive those who choose to employ unsavory tactics in litigation. Knowing the rules, knowing the options, and remaining civil are the tools that we all possess to combat difficult deponents and the small number of lawyers employing improper tactics.


1. See, e.g., LM Ins. Corp. v. ACEO, Inc., 275 F.R.D. 490, 491 (N.D. Ill. 2011):

Because a deposition generally proceeds as at trial, Rule 30(c)(1), Federal Rules of Civil Procedure, courts have uniformly held that once a deposition starts, counsel has no right to confer during the deposition, with perhaps one narrow exception, which is not applicable here.

See also GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 186 (E.D. Pa. 2008) (granting sanctions against a defendant for (i) engaging in hostile, uncivil, and vulgar conduct; (ii) impeding, delaying, and frustrating fair examination; and (iii) failing to answer and providing intentionally evasive answers to deposition questions).

2. No. 3:12-CV-00380-CAB (S.D. Cal. Dec. 31, 2014).

3. Id. at 4.

4. See Turner v. Glock, Inc., No. 1:02-cv-825, 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004).

5. See Susan Minsberg, Proper Deposition Objections, (Nov. 11, 2016),

6. See Robinson v. Chefs’ Warehouse, No. 3:15-cv-05421-RS, D.E. 78 (N.D. Cal. Mar. 21, 2017) (referring the plaintiffs counsel to the court’s Standing Committee on Professional Conduct for disciplinary proceedings); Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 609–10 (N.D. Iowa 2014), rev’d on procedural grounds, Sec. Nat’l Bank of Sioux City, Iowa v. Day, 800 F.3d 936 (8th Cir. 2015) (ordering the offending attorney to write and produce an instructional video on her own, explaining why unspecified “form” objections, witness coaching, and excessive interruptions are improper during depositions); see also Debra Cassens Weiss, Judge Sanctions New York City after Lawyer Makes 600 Objections in One Deposition, A.B.A. J. (May 17, 2017), (discussing a federal magistrate’s recent order requiring New York City to pay opposing counsel’s deposition costs as a result of the city’s lawyer asserting over 600 objections—appearing on 83 percent of the 400-page deposition transcript).

7. Bank of N.Y. v. Meridien BIAO Bank Tanz., Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997); Great Am. Ins. Co. of N.Y. v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 539 (D. Nev. 2008); Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 37–39 (D. Mass. 2001).

8. Great American, 251 F.R.D. at 539; Poole v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md. 2000).

9. Fed. R. Civ. P. 37(a)(3)(B) (failure to answer or make a designation); Fed. R. Civ. P. 37(a)(4) (evasive or incomplete disclosure, answer, or response is treated as a failure); Fed. R. Civ. P. 37(d) (party’s failure to attend deposition after proper notice); Resolution Trust Corp. v. S. Union Co., Inc., 985 F.2d 196, 197 (5th Cir. 1993) (awarding sanctions against plaintiff for producing unprepared designated witnesses); In re Vitamins Antitrust Litig., 216 F.R.D. 168, 171–72 (D.D.C. 2003) (awarding sanctions against the defendant and its counsel for failure to produce a properly educated corporate representative).

10. See, e.g., QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 697–98 (S.D. Fla. Jan. 30, 2012) (barring the plaintiff from taking a position on issues for which its corporate representative did not provide deposition testimony); see also United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996) (generally agreeing that a party cannot take a position at trial different than that taken at its deposition, but acknowledging that there may be instances where new information comes to light that may require the party in good faith to change its position).

11. See, e.g., Rainey v. Am. Forest & Paper Ass’n, Inc., 26 F. Supp. 2d 82, 94 (D.D.C. 1998).

12. 248 F.R.D. 182, 184 (E.D. Pa. 2008).

13. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

14. Id. at 528.

15. Cincinnati Ins. Co. v. Serrano, 2012 WL 28071 (D. Kan. Jan. 5, 2012) (emphasis in original).

16. Id.

17. Fed. R. Civ. P. 30(c)(2):

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).

(emphasis added); Luangisa v. Interface Operations, 2011 WL 6029880, at *8 (D. Nev. Dec. 5, 2011).

18. Luangisa, 2011 WL 6029880, at *11.

19. As noted earlier, courts are authorized and increasingly likely to impose sanctions for improper deposition objections. See Funk v. Town of Paradise, No. 2:09-cv-01000-MCE, 2011 WL 2580357, at *2 (E.D. Cal. June 28, 2011) (ordering that depositions be reconvened at one party’s expense where its counsel “repeatedly interrupted the depositions, interjected editorial comments, and coached or suggested information to the witnesses”); Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 604–09 (N.D. Iowa 2014), rev’d on procedural grounds, Sec. Nat’l Bank of Sioux City, Iowa v. Day, 800 F.3d 936 (8th Cir. 2015) (imposing sanctions sua sponte on the defendant’s counsel based upon an “astounding number of ‘form’ objections,” which amplified the issues of witness coaching and the “excessive interruptions” that “frustrate[ed] and delay[ed] the fair examination of witnesses”).

20. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

21. Id.

22. 182 F.R.D. 614, 620 (D. Nev. 1998).

23. Id. at 621.

24. In re Williams, 414 N.W. 2d 394, 397 (Minn. 1987).

25. 212 A.D. 288, 289–93 (N.Y. App. Div. 1995).

26. No. 16 C 4182 (N.D. Ill. 2018).

27. Id.

28. Id.

29. Id.

30. See Robinson v. Chefs’ Warehouse, No. 3:15-cv-05421-RS, 2017 WL 2617905, at *1 (N.D. Cal. June 16, 2017) (learning of multiple instances of misconduct by the plaintiffs counsel in other matters after issuing an order sanctioning the plaintiffs counsel for gross professional misconduct during the deposition of the plaintiff).

31. No. 14-cv-02730-BLF, 2016 WL 145557, at *4 (N.D. Cal. Jan. 12, 2016).

32. Id.

33. Id. at *5.

34. 791 So. 2d 1074, 1074–76 (Fla. 2001).

35. No. 3:15-cv-05421-RS, D.E. 78, at *2 (N.D. Cal. Mar. 21, 2017).

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By Adrian K. Felix, Martin A. Dolan, Rebecca C. Kibbe, and Lori Lustrin

Adrian K. Felix is a senior associate in Bilzin Sumberg’s Litigation Group. His practice focuses on complex commercial litigation, particularly in the area of franchise and distribution law. He is chair-elect of the TIPS Litigation and Trial Practice Committee and the Miami regional cochair for the ABA Judicial Internship Opportunity Program. Martin A. Dolan is the founder and managing partner of Dolan Law, P.C. His practice focuses on accidents, serious injuries, crime victim cases, products liability, and medical and professional malpractice, among others. He is a member of the Illinois Supreme Court Committee on Character and Fitness and the Board of Managers of the Illinois Trial Lawyers Association, as well as an associate of the American Board of Trial Advocates. Rebecca C. Kibbe, a partner in the Miami office of MG+M, focuses her practice on products liability and toxic tort defense. She also has experience in premises and general liability matters as well as general commercial litigation. Lori Lustrin is a partner in Bilzin Sumberg’s Litigation Group. Her practice focuses on antitrust and federal multidistrict class actions, including class action defense work with an emphasis on the consumer product and food and beverage industries; she also has substantial experience in a broad range of complex business litigation matters. They can be reached at, respectively, [email protected], [email protected], [email protected], and [email protected].