December 2005
By David B. Markowitz , Lynn R. Nakamoto

Associated File: Federal Courts Deposition Rules - Fall 2005.pdf

In December 1993, the Federal Rules of Civil Procedure were significantly amended. Some of those amendments addressed perceived “Rambo” litigation tactics, both by attorneys taking and defending depositions, as the Advisory Committee notes to the 1993 amendments make clear. See generally Advisory Committee Notes, 146 F.R.D. 401, 664 (1993) (depositions “frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy” and discussing the amendments in detail).

As we all know, Rule 30 changed how depositions were to be conducted. Among other changes, Rule 30 required that objections “be stated concisely and in a non-argumentative and non-suggestive manner,” and prohibited instructions not to answer except “to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion [for a protective order].” Rule 30(d)(1). The Committee Notes stated that objections

ordinarily should be limited to those that under Rule 32(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.

146 F.R.D. at 664-65. Rule 30 was amended to authorize (but not require) a court to impose sanctions, including resulting attorney fees, if the court finds that “any impediment, delay, or other conduct has frustrated the fair examination of the deponent.” Rule 30(d)(3). We know, however, that attorneys frequently question whether Rule 30 has any teeth, and whether federal courts are enforcing it.

There has been at least one effort to examine whether the 1993 amendments have made a difference. In late 1997, at the request of the Judicial Conference’s Advisory Committee on Civil Rules, the Federal Judicial Center published the results of its survey of 1200 attorneys in 1000 recently closed civil cases to examine discovery. Among other issues, attorneys were queried about problems during discovery and the effect of the 1993 rule changes. Overall, 10% of the attorneys who participated in depositions reported experiencing problems with witness coaching, 9% observed improper instructions not to answer, and 8% experienced other unreasonable conduct at depositions. Thomas E. Willging, et al., Discovery and Disclosure Practice, Problems, and Proposals for Change: A Case-Based National Survey of Counsel in Closed Federal Civil Cases at 1, 8, 33-34. Not surprisingly, the frequency of reported deposition problems varied with the kind of case involved. For example, 66% of the attorneys involved in a reported “contentious” case experienced a deposition problem, as opposed to 10% in a “non-contentious” case, and 13% of attorneys in contract cases had a deposition problem, whereas 35% of attorneys in civil rights cases did so. Id. at 33-34. When asked what would best reduce litigation costs during discovery, most lawyers (almost two-thirds) in the survey chose judicial availability to resolve disputes and case management, or changing attorney behavior through more frequent or severe sanctions and imposition of attorney civility codes. Id. at 10, 43-46.

Shortly thereafter, on June 1, 1998, the District of Oregon’s version of an attorney civility code, L.R. 83.8, became effective. It requires counsel to cooperate, “consistent with the interests of their clients, in all phases of the discovery process and be courteous in their dealings with each other, including the matters relating to scheduling and timing of various discovery procedures.” L.R. 83.8(a). The rule also provides that the court “may impose sanctions if it finds that counsel has been unreasonable in not accommodating the legitimate requests of opposing counsel.” L.R. 83.8(b). The District of Oregon is not alone in adopting professional conduct guidelines. See Ross v. Kansas City Power and Light Co., 197 F.R.D. 646, 647 (W.D. Mo. 2000) (district court noted that it had made its expectations regarding professional and civil conduct known to attorneys through an order calling attention to the local Kansas City bar’s tenets of professional courtesy).

Other courts have utilized specific deposition guidelines to help curb deposition abuses. See, e.g., Discovery Guidelines for the United States District Court for the District of Maryland, Appendix A to Local Rules (available on the court’s website at www.mdd.uscourts.gov/LocalRules/localrule2004finalver.pdf); Guidelines for Discovery Depositions of Magistrate Judge Foschio, Western District of New York (available at the court’s website at www.nywd.uscourts.gov/document/Depose_F.pdf).

Such guidelines can play a significant role in motions for sanctions. For example, Judge Foschio has incorporated the Guidelines into his Rule 16 case management orders, thereby expanding the available options for sanctions for discovery abuse. See Jones v. J.C. Penney’s Dept. Stores, Inc., 228 F.R.D. 190, 196-98 (W.D.N.Y. 2005). In that case, the offending attorney violated Rule 30, parallel local deposition guidelines, and the Rule 16 order of the court at his client’s deposition. Although the magistrate judge declined to punish his client on the merits of the case because the violations did not relate directly to the opponent’s ability to mount a defense to the claims, he recommended that the attorney be held in civil contempt through violation of the order under Fed. R. Civ. P. 16(f) and 37(b)(2)(D) and also be required to pay the defendant’s fees and costs for the plaintiff’s deposition. 228 F.R.D. at 198. See also Boyd v. University of Maryland Medical System, 173 F.R.D. 143, 146 (D. Md. 1997) (attorneys are referred to the local guidelines and asked to become familiar with them in Rule 16 orders, and compliance, although not mandatory, is considered in determining whether sanctions should be imposed); Ross, 197 F.R.D. at 647 (lawyers made aware of local professional guidelines required to donate the amount of the expenses claimed to have been incurred by each because of discovery disputes to a local legal services law office, but stay of the order pending review of their future conduct in the case).

As for sanctions, are the courts really enforcing the deposition rules when violations are brought to their attention? We have surveyed opinions and orders available on Westlaw to see how the district courts have been addressing instructions not to answer questions, witness coaching, obstruction, and similar violations under Rule 30. We found surprisingly few cases – less than 75 – dealing with this sort of “deposition abuse” since the adoption of the 1993 amendments. Perhaps that is a testament to how much the amendments and related deposition guidelines and local rules of the courts have influenced attorney conduct at depositions.

The cases demonstrate that litigants are still on occasion encountering attorney (and sometimes party) conduct that clearly violates the requirements of Rule 30, and that almost all courts award sanctions for clear violations that impede the normal litigation process. In only one case that we reviewed did a judge express general reluctance to impose sanctions. See SS & J Morris, Inc. v. I. Appel Corp., 2000 WL 1028680 at *1 (S.D.N.Y. July 26, 2000) (“I do not encourage sanctions motions and I am hesitant to impose sanctions” – but the court imposed sanctions anyway). And, in only one case, Blumenthal v. Drudge, 186 F.R.D. 236 (D.D.C. 1999), did the court decline to award sanctions for clear violations. The court indicated its disinclination to “waste its time” on sanctions on that occasion, probably based on the lawyers’ mutual poor conduct and cross-fire whining. The court described the papers, correspondence, and deposition excerpts filed as “replete with examples of rudeness, childish bickering, name-calling, personal attacks, petty arguments and allegations of stonewalling and badgering of witnesses.” Id. at 239. The court admonished the lawyers, however, that sanctions could follow for continued failure to behave professionally. Id. at 242 n.5. Cf. Mruz v. Caring, Inc., 166 F. Supp. 2d 61, 71 (D.N.J. 2001) (reversing magistrate judge’s ruling revoking pro hac vice admission of offending lawyer under court’s inherent power, but noting that sanctions available under federal rules were appropriate).

We reviewed numerous cases involving witnesses, often experts, instructed not to answer relevant questions without the attorney identifying a privilege that may apply. Such instructions unaccompanied by a claim of privilege were a sure-fire way to draw the court’s condemnation and sanctions. See, e.g., Cabana v. Forcier, 200 F.R.D. 9, 16-18 (D. Mass. 2001) (counsel directed expert witness physician not to testify regarding any disciplinary proceedings or involvement in other litigation based on relevance; motion expenses awarded under Rule 37); Boyd v. University of Maryland Medical System, 173 F.R.D. 143, 149 (D. Md. 1997) (counsel instructed client not to answer questions about his criminal convictions and related issues based on asserted inadmissibility; likely sanction of attorney personally paying costs of reconvened deposition); Shapiro v. Paul Revere Life Ins. Co., 1997 WL 601430 (N.D. Cal. Sept. 18, 1997) (sanction of $1500 awarded for motion expense).

As the cases above indicate, sanctions often included motions expenses. However, sanctions sometimes included expenses related to the depositions, and could involve payments from the offending lawyer personally. E.g., Boyd, 173 F.R.D. at 149; Semi-Tech Litigation LLC v. Bankers Trust Co., 2004 WL 251017 (S.D.N.Y. Feb. 11, 2004) (expert depositions reopened at plaintiff’s expense, plaintiff pays for deposing counsel’s travel expenses for reopened deposition and $1,000 for expenses of the motion, and objecting counsel must show cause why he should not be sanctioned personally). In a case where the plaintiff died before he could be re-deposed, the sanction involved limiting evidence. Howell v. Standard Motor Products, Inc., 2001 WL 456241 (N.D. Tex. April 27, 2001) (sanction for improper instruction not to answer questions regarding how he was retaliated against at work was to preclude evidence of retaliation at trial).

Mere identification of privilege as the basis for instructions not to answer, though, may not be enough. In In re Omeprazole Patent Litigation, WL 818821 (S.D.N.Y. February 18, 2005), the court ordered a party and its counsel to pay for a portion of the costs of the opponent’s motion, although the attorney asserted a privilege applied. The court concluded that the attorney’s argument that the expert witness was not required to testify to subject matter he deleted from his expert report “lacked a substantial justification” and so required sanctions under Rule 37. Nevertheless, the court recognized that some leniency should be afforded to counsel when a privilege is asserted, and so did not assess a sanction for the attorney’s erroneous instruction not to answer questions concerning discussion between the attorney and expert as to the reasons for the amendment of the expert report. Id. at *15.

In evaluating whether it would award sanctions, the Maryland district court in Boyd has provided helpful guidance to counsel thinking about the risk in instructing a witness not to answer a question. That court considers five factors in deciding motions for sanctions: 1) the importance of the undisclosed facts to the issues in litigation; 2) the number of times counsel instructed deponent not to answer; 3) whether the questions posed were objectionable; 4) whether it appeared that the instruction was designed for purpose of disrupting the deposition; and 5) whether the attorney who gave the instruction knew such an inquiry would likely be posed and had the ability to seek a protective order beforehand. 173 F.R.D. at 147, 149.

A second common area of conduct drawing sanctions involved attorneys interjecting repeated speaking objections. E.g., Phinney v. Paulshock, 181 F.R.D. 185, 206-07 (D.N.H. 1998) (attorney sanctioned for speaking objections, over 50 objections to form which appeared designed to impede the flow of the deposition, and instructions not to answer questions directed to third party witness); McDonough v. Keniston, 188 F.R.D. 22 (D.N.H 1998) (proposed sanctions for similar conduct in the form of expenses incurred to take the suspended and the reopened deposition, specifically, the reporter fee, transcription cost, and attorney fees for time at the deposition).

The third common area involving sanctions is the defending attorney’s or a party’s repeated interruptions of the deposition with unprofessional remarks or other conduct that reduces the ability of the lawyer to take the deposition in an orderly and timely manner. See, e.g., Morales v. Zondo, Inc., 204 F.R.D. 50, 54-58 (S.D.N.Y. 2001) (transcript excerpts show defending attorney’s repeated commentary on opposing counsel’s questioning technique or ad hominem attacks, speaking objections or instructions how to answer, and interruptions to ask his own questions; attorney required to pay transcript cost, attorney fees for deposition time, and $1,500 fine to the district court). A local case involving party misconduct is Antonino-Garcia v. Shadrin, 208 F.R.D. 298 (D. Or. 2002) (defendant and her sister interrupted questioning and talked with each other during deposition, despite counsel’s requests to stop and warning regarding a motion for sanctions; defendant order to pay attorney fees and reporter appearance and transcript fee for deposition).

All of these cases suggest that federal courts take significant Rule 30(d) violations seriously. Attorneys who maintain their own professional conduct in the case and who present courts with such Rule 30(d) violations should be able to obtain sanctions against offending opposing counsel or the opponent or both.

This article appeared in the fall 2005 issue of the Oregon State Bar's Litigation Journal. To download this article and the full issue, go to the OSB Litigation Section's Web site at http://www.osblitigation.com/lj2005-fall.pdf.

Related Practice Areas:
Business and Commercial Litigation