This article was originally published as Civility In Depositions – Hard Ball Strikes Out, as part of the Course Book for the Federation of Insurance and Corporate Counsel’s Mid-Winter Meeting in Naples, Florida, March 1995. It also appeared in the August 1998 DRI Lawyers Professionalism & Ethics Newsletter and was published as How to Deal With Improper Objections and Tactics During Depositions in the Federal Discovery News, LRP Publications, June 1995. Copyright 1995 by the author.
Depositions have been described as “the most important of the pre-trial discovery tools.”(1) They have also been described by commentators as one of the most frequently abused of all discovery methods. “[I]n many instances, the purpose of a deposition is to sink the witness, and not merely to take discovery….” (2) In response to this seeming abuse of discovery through depositions, federal courts have sought to limit (through the Federal Rules of Civil Procedure and local district court rules) the number of depositions that can be taken without prior leave of Court.(3)
“The underlying purpose of a deposition is to find out what a witness saw, heard, or did–what the witness thinks. A deposition is meant to be a question and answer conversation between the deposing lawyer and the witness.” Hall v. Clifton Precision, adivision of Litton Systems, Inc., 150 F.R.D. 525 (E.D. Pa. 1993). The lawyer’s role at the deposition of his own client is to make sure that the other party does not harass, intimidate or badger the witness and to make sure that the necessary objections are properly lodged. “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.” Hall, Id. (Footnote omitted). “In short, depositions are to be limited to what they were and are intended to be: question-and-answer sessions between a lawyer and a witness aimed at uncovering the facts in a lawsuit.” Hall, Id. at531.
An undercurrent to these deposition abuses is the prevalence, in many commentators’ opinions, of incivility of counsel to one another and to the court. The United States Court of Appeals for the Seventh Circuit studied the problem of incivility and issued an interim report in April of 1991. Among their findings were:
Some jurists have noted a trend of lawyers “selectively adhering” to the Rules of Civil Procedure. The perception of selective adherence during the discovery process has caused Judge Martin D. Kahn of the Fourth District Court of Appeal of Florida to:
… urge senior lawyers to imbue their junior colleagues with the sense of honor and fair dealing that our noble profession warrants. If the conduct and ethics of the practice of law are reduced to the level of the marketplace, the public (and the legislature) cannot be faulted for reining in the independence of the bar. That would be sad indeed.
Smith v. Gardy, 569 So. 2d 504, reh’g denied, (Fla. 4th DCA 1990), rev. denied, 581 So.2d 1310 (Fla. 1991).
A frequently cited objection to questioning during depositions is that counsel for the deponent does not understand the question or believes the question is unclear. Such an objection is improper. Phillips v. Manufacturers Hanover Trust Company, No. 92 Civ.8527, 1994 U.S. Dist. LEXIS 3748 (S.D.N.Y. March 29, 1994). As long as the deponent is correctly instructed at the beginning of the deposition by counsel taking the deposition, that the deponent has the right to ask for clarifications, definition or explanations of words, questions or documents, “A [deponent’s] lawyer’s purported lack of understanding is not a proper reason to interrupt a deposition.” Hall, Id. at 530 n.10).
Judge Gawthrop in the Hall decision noted that it was mandatory that the attorney taking the deposition “shall instruct the witness to ask deposing counsel, rather than the witness’ own counsel, for clarifications, definitions, or explanations of any words, questions, or documents presented during the course of the deposition. The witness shall abide bythese instructions.” (Emphasis supplied). Hall, Id. at 21.
Counsel cannot object and instruct the witness not to answer a question seeking an opinion of the witness even if that witness is not being offered as an expert. As long as the question does not require the deponent to provide privileged (attorney-client or work-product) information, it is improper for the witness to refuse to answer a question or for counsel to instruct the witness not to answer a question based solely on the fact that the interrogating attorney is requesting information in the form of an opinion. Weyant v.Rawlings, 389 So. 2d 710 (Fla. 2d DCA 1980); Decker v. Pohlidal, 22 Pa. D. & C. 2d 627,640 (1960).
You cannot instruct a witness not to answer on the basis of relevance. Although the standard for seeking discovery is that information must be relevant or likely to lead to relevant information, an instruction not to answer the question grounded on relevance is inappropriate. Standard Chlorine of Delaware, Inc. v. Sinibaldi Civil Action No. 91—188—SLR, 1994 U.S. Dist. LEXIS 3388 (D. Del. March 21, 1994).
Both the Florida Rules of Civil Procedure [1.310(c)], and Federal Rule 30(d)(1) state:
A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d), [Fed. Rule … under paragraph(3)].
The Florida Rule further states “Otherwise, evidence objected to shall be taken subject to the objections.”
The only proper way to prevent questioning on matters that are wholly irrelevant and not likely to lead to relevant evidence is through the suspension of the deposition. In that instance, the counsel seeking to suspend the deposition must be prepared to show that the examination of the deponent:
… is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party …
Fed. R. Civ. P. 30(d)(2); Fla. R. Civ. P. 1.310(d), see also, Tubero v. Ellis, 472 So. 2d 548, 550 (Fla. 4th DCA 1985), (explains how Fla. R. Civ. P. 1.310(d) is to be interpreted and followed).
As noted by Judge Kahn in his decision in Smith (Id.), there is trend of selective adherence to the Rules of Civil Procedure. This selective adherence has led to overly aggressive lawyers making “speaking objections” which do not instruct the witness not to answer but suggest an answer to the witness. This practice is the focus of attention in Fed.R. Civ. P. 30(d)(1) where the rule states “Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.” Florida has the same rule as 30(d)(1) in Fla. R. Civ. P. 1.310(c), with the exception that the words “to evidence” do not appear in the Florida version of the rule. Further, this practice of speaking objections has been severely criticized in a number of recent decisions.
This perceived discovery abuse during depositions led to the 1993 amendments to Rule 30 of the Federal Rules of Civil Procedure. In the Advisory Committee’s notes accompanying these changes the committee stated:
Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond. While objections may, under the revised rule, be made during a deposition, they ordinarily should be limited to those that under Rule30(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer. Under Rule 32(b), other objections can, even without the so-called “usual stipulation” preserving objections, be raised for the first time at trial and therefore should be kept to a minimum during a deposition.
Paragraph (3) authorizes appropriate sanctions not only when a depositionis unreasonably prolonged, but also when an attorney engages in other practices that improperly frustrate the fair examination of the deponent, such as making improper objections or giving directions not to answer prohibitedby paragraph (1).
See also Phillips, Id.; Hall, Id.; Civatrese v. Gorney, 358 Mass. 652, 266 N.E. 2d 668(Mass. 1971).
It is common practice (and some would say, if not done, malpractice) for an attorney to confer with his client prior to the commencement of the deposition to prepare the client or the deponent for the questions to be propounded by opposing counsel. There is nothing improper with this practice. Is it proper, however, to confer with the client during the deposition or at breaks or recesses during the deposition? What if the client requests the conference? The answer to all of these questions is a resounding NO!
The above questions were addressed by Judge Gawthrop in his decision in Hall v.Clifton Precision, Id. In that case, counsel for the deponent insisted on private conferences with his client on issues such as the contents of documents shown to the deponent during the deposition and the meaning of certain terms or the definition of certain words used by opposing counsel during the deposition. The court began with the premise that “a lawyer and client do not have an absolute right to confer during the course of the client’s deposition.” Id.. While the Court recognized that a lawyer has the right “if not the duty” to prepare a client for a deposition, the court specifically noted that once the deposition began, the client’s right to be represented by counsel was offset by “the underlying goal of our discovery rules: getting to the truth.” (Id.). Judge Gawthrop observed that such private conferences tend to give the appearance of obstructing the truth. The court concluded that, whether the conference be requested by the attorney for the deponent or the deponent himself, “… conferences between witness and lawyer are prohibited both during the deposition and during recesses.” (Id.). The only exception to this rule was to allow the attorney and his client to confer for the sole purpose of determining whether a privilege should be asserted. See also, Standing Orders of the Court on Effective Discovery in Civil Cases, 102 F.R.D. 339, 351 (E.D.N.Y. 1984).
What happens if a conference occurs? Judge Gawthrop in his opinion foresaw this possibility and provided, in n. 7;
To the extent that such conferences do occur, in violation of this Opinion and Order, I am of the view that these conferences are not covered by the attorney-client privilege, at least as to what is said by the lawyer to the witness. Therefore, any such conferences are fair game for inquiry by the deposing attorney to ascertain whether there has been any coaching and, if so, what.
“The making of an excessive number of unnecessary objections may itself constitute sanctionable conduct …”(5) The sheer volume of objections was viewed by the Advisory Committee as substantially interfering with the interrogating party’s ability to obtain information from the deponent. See also; Hall, Id..
Since most objections, such as those grounded on relevance or materiality, are preserved for trial, they need not be made. As for those few objections which would be waived if not made immediately, they should be stated pithily.
Id. (Footnote omitted).
Judge Robert S. Gawthrop, III in his decision in Hall (Id.), articulated the proper conduct of counsel at deposition. The Order, issued July 29, 1993, provided the following guidelines:
See also; Fed. R. Civ. P. 30(d), Fla. R. Civ. P. 1.310(c), Weyant, Id.
The Federal and Florida Rules envision that unless a question calls for a response which may invade the attorney-client or work-product privilege (or some other specifically identifiable privilege), a lawyer is not entitled to object to the question and instruct the witness not to answer. Unless a question deals with a claimed privilege, judicial review of the propriety of objections during a deposition should never occur. This will necessarily require the objecting party to take the risk of non-compliance. An attorney, therefore, has no other alternative than to allow the questioning to proceed unless the examination becomes so onerous as to be interpreted as being conducted in bad faith or to annoy, embarrass or oppress the witness. See, Fed. R. Civ. P. 30(d)(3); Fla. R. Civ. P. 1.310(d);Civatrese (Id.). The rule thus puts the risk on the objecting counsel to either sustain the claimed privilege or prove to the satisfaction of the court that the examining attorney is engaging in oppression or harassment. If successful, sanctions are warranted (even without a prior Order limiting the scope of the deposition). Rules 30(d)(3) and 37(a)(4),Fed. R. Civ. P.; Rules 1.310(d) and 1.380(a), Fla. R. Civ. P. “This sanction may be imposed on a non-party witness as well as a party or attorney, but is otherwise congruent with Rule 26(g).” See; Advisory Committee Notes, 1993 Amendment.
Judge Aspen in his article (Id.) refers to the recent amendments to the Federal Rules as possibly spawning a “cottage industry of sanctions.” See also; Castillo v. St. PaulFire and Marine Insurance Company, 938 F.2d 776 (7th Cir. 1991), reh. den. The Seventh Circuit’s Special Committee on Civility (chaired by Judge Aspen) recommended against creating more court sanctions in addition to those already available under the Federal Rules of Civil Procedure or the court’s own inherent supervisory powers. Instead, they recommended broader dissemination of the rules governing conduct during depositions and an emphasis on civility.
Another limiting factor was also noted in an article entitled, “Liability for Litigation Tactics is Becoming More Common–and More Costly,” authored by Harry H. Schneider, Jr. in the January 1994 edition of the American Bar Association Journal. In that article he notes “[o]verzealous representation in litigation matters now accounts for a healthy share of malpractice claims against lawyers.” This chilling forewarning should also limit prohibited deposition tactics.
The report of the Seventh Circuit Special Committee on Civility recommended five interim recommendations to improve the civility of lawyers and the training of law students. The third recommendation was that lawyers and law students alike participate in the American Inns of Court. Judge Aspen in his article commenting on the Committee recommendations noted that the Inns of Court provide a framework that endeavors:
… to unite a cross-section of the bar ‘into a forum for the promotion of excellence in legal advocacy as a calling as well as enhanced individual capability’ by providing a ‘congenial, stimulating and cooperative interaction among students, lawyers and judges whose primary professional interests are in the aspects of trial and appellate practice’ while contributing ‘to essential reforms and improvements in the training and performance of legal advocates.’
Id., at 62, citing: The American Inns of Court: A Perspective (1986).
Judge Milton Shandur in his commentary on hardball litigation noted that he believed that the client and the quality of life in the legal profession was directly related to the sharp increase in the number, and proportion, of hardball litigators. He felt that change must come from within the profession–by viewing hardball litigators not as folk heros but as the primary cause of the degradation of trial practice. He asked lawyers to “take a hardlook at themselves and at what they do.” He asked lawyers to decide “that it is simply better, and that it damages neither themselves nor their clients, to act reasonably toward their adversaries.” He implored them to educate their clients that hardball litigation does not benefit everyone and warned that if they don’t, “the lawyers’ world of the next twenty years will be an even less pleasant place to live.”(6)