Sanctions for Deposition Misconduct Under FRCP 30(d)

Authors: David Markowitz and former Markowitz Herbold litigator Lynn Nakamoto

In 1993, Fed. R. Civ. P. 30 was amended to address disruptive conduct at depositions. Rule 30(d) was added to limit speaking objections and instructions not to answer questions, to authorize limitations on the duration of depositions, and to authorize sanctions for obstructing a deposition. In December 2000, Rule 30(d) was amended again to clarify the limits on speaking objections and to place a presumptive 7-hour limit on the duration of a deposition. We previously reviewed the case law that had developed under Rule 30(d) as of early 1997, including a handful of reported cases that discussed motions for sanctions under the rule. This article revisits the subject of sanctions under Rule 30(d).

Rule 30(d)(3) provides that if a court “finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof.” This provision authorizes the same sanctions instituted in 1993, then contained in Rule 30(d)(2). Our review of the cases indicates that courts are willing to sanction parties and their lawyers and even control non-parties upon a showing of material, unjustified interference with depositions in violation of Rule 30(d).

A. Considerations for imposing sanctions.

Most of the cases we reviewed discuss when conduct by attorneys at depositions violates Rule 30(d) and have discussed the pervasiveness or egregiousness of violations as the basis for sanctions, implying but not expressly imposing a good faith test. See, e.g., Morales v. Zondo, Inc., 204 F.R.D. 50 (S.D.N.Y 2001). In Morales, the court found that defense counsel’s objections, private consultations with the witness, instructions not to and how to answer, interruptions, and ad hominem attacks were disruptive and protracted the length of the deposition, in violation of Rule 30(d). Id. at 54. The court noted that interruptions were “pervasive” where defense counsel’s name appeared on more than 85 percent of the pages of the transcript with statements other than objections as to form or requests that the court reporter read back the question. Id. See also Van Pilsum v. Iowa State Univ. of Sci. and Tech., 152 F.R.D. 179, 180-81 (S.D. Iowa 1993) (attorney “monopolized” 20 percent of his client’s deposition in that of 167 pages of transcript, there were only four segments where five or more pages of uninterrupted questioning occurred and of 4025 lines of transcript, 818 were occupied by the offending counsel’s interference; attorney sanctioned for “Rambo Litigation”); United States v. Kattar, 191 F.R.D. 33, 38 (D.N.H. 1999) (attorney’s conduct “unreasonable and in bad faith”).

Few courts have attempted to establish another framework for determining when conduct in violation of Rule 30 appropriately warrants sanctions. We found two such cases. In Harp v. Citty, 161 F.R.D. 398, 402 (E.D. Ark. 1995), the court discussed its role in facilitating discovery, addressing discovery disputes quickly, and the use of sanctions to prevent parties employing obstructionist behavior from gaining advantage. The court in Harp suggested that legitimate discovery disputes should be brought to the court without fear of sanctions being imposed on either party to the dispute but that where (1) attorneys engage in conduct that violates Rule 30(d), (2) the positions taken at the deposition are not substantially justified, (3) the party did not rectify the problem after an opportunity to review its position and to correct it, and (4) the objections were not harmless, then sanctions (under Rule 37) must be awarded. 161 F.R.D. at 402, 404.

The court in Boyd v. University of Maryland Med. Sys., 173 F.R.D. 143 (D. Md. 1997), specified a framework under Rule 30(d) for deciding on sanctions. In Boyd, the defendant brought a motion to compel and sought sanctions based on plaintiff’s counsel’s instructions to the witness not to answer questions at his deposition. 173 F.R.D. at 144. Although the court ordered plaintiff’s counsel to show cause why he should not pay costs to reconvene the deposition, it refused to award costs of bringing the motion as a sanction, noting that “the mere fact that Boyd’s counsel improperly instructed him not to answer deposition questions does not mean that this Court is required to impose sanctions.” Id. at 149.

Instead, the court explained, whether the sanction should be imposed rests on five factors: (1) the importance to the issues in the litigation of the facts which were not disclosed because of the instruction not to answer; (2) the number of times the counsel instructed the deponent not to answer; (3) whether the questions posed were objectionable; (4) whether the instruction not to answer was for purposes of disrupting the deposition; and (5) whether counsel was on notice of the likelihood that deposing counsel would initiate an inquiry into an area objectionable to defending counsel, and whether he sought a protective order. Id. The court noted, however, that instructions not to answer that do not comply with Rule 30(d) are presumptively improper and sanctions are usually appropriate in such instances. 173 F.R.D. at 147.

Boiled down, these cases suggest that courts and litigants should consider three primary factors in evaluating whether the imposition of sanctions for Rule 30(d) violations is warranted: (1) some harm to the moving party, (2) the objective reasonableness of the position taken by the offending party/lawyer, and (3) the good faith and willingness to follow the rules displayed by the offending party/lawyer. Thus, any motion for sanctions should address these factors, and the motion should include a showing of the appropriate amount of monetary sanctions. See, e.g., Damaj v. Farmer’s Insurance Co., 164 F.R.D. 559, 562 (N.D. Okla. 1995) (court ordered a second deposition and restricted counsel’s conduct but denied request for fees for preparing the motion in an amount of “not less than $1,000” on ground that it was “unsupported by citation to specific legal authority and documentation of fees incurred with leave to file supplemental materials.

B. Range of sanctions available.

The language of Rule 30(d)(3) allows for “appropriate” sanctions against “the persons responsible.” Our review of the cases showed that in every case where violations of Rule 30(d) were found, a second deposition of the witness was permitted. In addition, courts have ordered in various combinations payment of the costs of the motion to compel and for sanctions, payment of fees and costs for the first and/or the second deposition of the witness, monetary sanctions paid to the court, and limitations or restrictions at subsequent depositions in the case, some of which have significant cost implications for clients.

In about half of the cases, the offending attorney rather than the party was held personally responsible for some or all of the costs of depositions because of the interference. See, e.g., Van Pilsum, 152 F.R.D. at 181 (50 percent of the costs of the first deposition); Morales, 204 F.R.D. at 59 (cost of the first deposition transcript and fees for time spent in the first deposition). See also Boyd, 173 F.R.D. at 149 (court inclined to order counsel to pay all costs for second deposition–court reporter appearance fee, transcript, and attorney fees).

Where the cost of the motion was awarded as a sanction, it was awarded against the party. See Harp, 161 F.R.D. at 404 (actual, reasonable expenses for preparing the motion and attending the hearing); Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 701 (S.D. Fla. 1999) (reasonable costs to bring motion); Shapiro v. Paul Revere Life Ins. Co., 1997 WL 601430 at *4 (N.D. Cal. 1997) ($1500 for bringing the motion).

For cases in which the party was ordered to pay for depositions, see Harp, 161 F.RD. at 404 (all fees and expenses for first and second depositions); Quantachrome Corp., 189 F.R.D. at 701 (same for second deposition); O’Brien v. Amtrak, 163 F.R.D. 232, 235-36 (E.D. Pa. 1995) (same); and Antonino-Garcia v. Shadrin, 208 F.R.D. 298, 300 (D. Or. 2002) (Stewart, M.J.) (attorney fees and court reporter appearance and transcript fees for first deposition).

Cases involving restrictions placed on offending parties or their counsel at subsequent depositions as a sanction include Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 535-36 (M.D. Pa. 2002) (at second deposition, “liberal questioning” allowed in areas subject to improper objections and instructions not to answer and as to conversations between deponent and counsel on occasions when counsel took breaks although a question was pending); Antonino-Garcia, 208 F.R.D at 300 (failure to fully answer questions would result in certain facts being deemed admitted); and Kattar, 191 F.R.D. at 39 (specifying beginning and ending times for depositions and breaks and ordering counsel to conform objections to Rule 30(d)). In an unusual case, the court in Van Pilsum in effect punished the moving party when it noted that its counsel responded in kind to the offending attorney. The court required that all further depositions take place in front of a discovery master, to be paid by both parties equally. 152 F.R.D. at 180-81.

Even non-parties who attend depositions can be controlled by the court under Rule 30(d)(3). In Antonino-Garcia, a non-party, the defendant’s sister attended as a supporter and disrupted the defendant’s deposition. Magistrate Judge Stewart ordered that only defendant or her counsel could speak to the defendant, plaintiff’s counsel, or anyone else present during defendant’s deposition. 208 F.R.D at 300. And, in Morales, Rule 30(d)(3) and the court’s inherent power authorized a $1500 fine against the defense attorney paid to the court. Id. at 59.

At least one court faced with the specific question has been unwilling to grant the ultimate sanction of default based on deposition misconduct. See Kattar, 191 F.R.D. at 39. However, Rule 30(d) is a powerful tool for attorneys who face interference in depositions from defending counsel, and the Antonino-Garcia case, which included an award of sanctions against a pro se party, demonstrates that judges in our district are willing to control significant violations of Rule 30(d)’s specific guidelines.

This article appeared in the June 2003 issue of the Oregon State Bar's Litigation Journal.

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