Federal courts increasingly are cracking down on deposition misconduct through the imposition of sanctions under Rule 30(d)(2), which authorizes a wide array of sanctions against any person who impedes, delays, or frustrates the fair examination of a deponent. Fed. R. Civ. P. 30(d)(2). Sanctions are being imposed with greater frequency upon clients and their lawyers. As discussed below, sanctions may be imposed whether the disruption to the deposition was deliberate, or merely the product of a misunderstanding of the rules governing deposition conduct. For instance, courts have increasingly sanctioned lawyers under Rule 30(d)(2) for making speaking objections or improperly instructing witnesses not to answer questions. In addition, two courts have recently held that sanctions may be imposed for a lawyer’s failure to intervene when a deponent client engages in deposition misconduct, on the theory that the defending lawyer’s silence ratified and encouraged the bad conduct.
David Markowitz, along with Oregon Supreme Court Justice Lynn Nakamoto, wrote on the subject of Rule 30(d) sanctions approximately ten years ago. David B. Markowitz and Justice Nakamoto, Sanctions for Deposition Misconduct Under FRCP 30(d), Oregon State Bar Lit. J., Vol. 22, No. 2 (August, 2003). The intervening years have seen an increasing use of sanctions to curb deposition misconduct, and a consequent development in the law. This article provides an update regarding sanctions for deposition misconduct
in federal court under Rule 30(d), discusses methods by which a lawyer defending a deposition may protect her witness while avoiding sanctions, and briefly comments upon the potential to seek sanctions in Oregon State court, given the absence of an analog to Rule 30(d)(2) in Oregon’s procedural rules.
I. Sanctions Under Federal Rule 30(d)(2).
A. The Use of Sanctions for Deposition Misconduct is on the Rise.
The last several years have seen a significant rise in the use of sanctions to curb deposition misconduct in federal courts. Rule 30 was amended in 1993 to include express authorization for the court to sanction a lawyer whose misconduct impeded, delayed or frustrated the fair examination of a deponent. Fed. R. Civ. P. 30(d)(2). Our research revealed a several hundred percent increase in the number of Rule 30(d)(2) sanctions opinions in the last ten years, over the number of opinions in the initial ten years following the Rule’s amendment in 1993. Indeed, we identified more opinions concerning Rule 30(d)(2) sanctions in the last two years than in the ten years after 1993. This increase in the use of sanctions for deposition misconduct, as well as the reasoning and tenor of recent judicial opinions, suggests that courts are granting motions for sanctions with increasing frequency.
Judicial willingness to impose sanctions for deposition misconduct may be based in part upon an understanding of how critically important the deposition has become in modern litigation.
More than 98% of all civil cases filed in the federal courts result in disposition by way of settlement or pretrial adjudication. Very often, these results turn on evidence obtained during depositions. Thus, depositions play an extremely important role in the American system of justice.
See e.g. GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 185 (E.D. Penn. 2008)(internal citations omitted).
Given the increasing use of sanctions to curb deposition misconduct, the practitioner should be familiar with the circumstances under which sanctions may be imposed, the range of available sanctions, and how to avoid sanctionable conduct when defending a deposition.
B. Considerations for Imposing Sanctions for Deposition Misconduct.
Rule 30 articulates the standard for proper deposition conduct and authorizes the court to impose sanctions for misbehavior. Lawyers must conduct the examination and cross-examination of a deponent in the same manner, and with the same level of decorum, “as they would at trial.” Fed. R. Civ. P. 30(c)(1). Objections “must be stated concisely in a nonargumentative and nonsuggestive manner,” and a witness may be instructed 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).” Fed. R. Civ. P. 30(c)(2)(emphasis added). Rule 30(d)(2) states that the “court may impose an appropriate sanction – including the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes, delays or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). Thus, sanctions may be imposed for “argumentative objections, suggestive objections, and directions to a deponent not to answer…[A]n excessive number of objections may constitute actionable conduct, though the objections be not argumentative or suggestive.” Craig v. St. Anthony’s Medical Center, 384 F. App’x. 531, 533 (8th Cir. 2010)(paraphrasing the Advisory Committee’s comments to Rule 30(d)(2)).
The text of Rule 30 suggests that a court employ a two-fold analysis in deciding whether to impose sanctions for deposition misconduct. “First, the movant must identify language or behavior that impeded, delayed or frustrated the fair examination of the deponent . . . . Second, the movant must identify “an appropriate sanction.” Dunn v. Wal-Mart Stores, Inc., No. 2:12-cv-01660-GMN-VCF, 2013 WL 5940099, at *5 (D. Nev. Nov. 1, 2013). Naturally, in conducting this analysis a court will consider both the frequency and severity of the objectionable conduct. Craig, 384 F. App’x. at 533.
While courts will sometimes consider whether deposition misconduct was undertaken in bad faith, bad faith is not a requirement for the imposition of sanctions under Rule 30(d)(2). Hylton v. Anytime Towing, No. 11CV1039 JLS (WMc), 2012 WL 3562398, at *2 (S.D. Cal. Aug. 17, 2012); Layne Christensen Co. v. Bro-Tech Corp., No. 09-2381-JWL-GLR, 2011 WL 6934112, at *2 (D. Kan. Dec. 30, 2011)(holding that Rule 30(d)(2) does not require a finding of bad faith before sanctions may be imposed); see also GMAC Bank, 248 F.R.D. at 196.
C. Courts Will Impose Sanctions for a Broad Range of Conduct.
Courts will sanction lawyers for discourtesy during a deposition, making speaking objections, and excessive interruptions. A recent case from the Seventh Circuit provides a good example of growing judicial intolerance for this sort of conduct. Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). In Redwood, the lawyer taking the deposition asked largely irrelevant, and at times harassing, questions. Id. at 468-469. The defending lawyer did not suspend the deposition to seek a protective order under Rule 30(d)(3), but instead engaged in speaking objections and improperly instructed the witness not to answer. Id. The deponent, who was himself a lawyer, feigned the inability to remember or understand basic questions. Id. The trial court found that counsel for all the parties had behaved badly, and therefore declined to sanction either side. Id. at 469-470. The Seventh Circuit reversed, finding that “mutual enmity does not excuse [a] breakdown in decorum” and that the district court should have used its authority to maintain standards of civility and professionalism. Id. The Court censured three lawyers, including the deponent, admonished a fourth lawyer, and warned that any “repetition of this performance, in any court within this circuit, will lead to sterner sanctions, including suspension or disbarment.” Id. at 470.
Other courts have echoed this disdain for unprofessional conduct during depositions. “Both sides have complained about opposing counsel’s conduct during depositions … The Court’s extensive review of these pages serves as a useful reminder that loaded guns, sharp objects and law degrees should be kept out of the reach of children … Both lawyers made inappropriate speaking objections to deposition questions and improperly instructed witnesses not to answer questions.” AG Equip. Co. v. AIG Life Ins. Co., No. 07-CV-556-CVE-PJC, 2008 WL 5205192, at *3 (Dec. 10, 2008). Although the recent occasions upon which courts have sanctioned this sort of conduct are too numerous to list, some additional examples are: Deville v. Givuadan Fragrances Corp., 419 F. App’x. 201, 207 (3rd Cir. 2011)(upholding sanctions for abusive, unprofessional and obstructive conduct during deposition); Specht v. Google, Inc., 268 F.R.D. 596, 598-599, 603 (N.D. Ill. 2010)(imposing sanctions for speaking objections that obstructed the deposition); BNSF Ry. Co. v. San Joaquin Valley RR Co., 2009 WL 3872043, *3 (E.D. Cal. Nov. 17, 2009)(imposing sanctions for inappropriate and burdensome objections). In addition, earlier this year in a case that is still pending in the District of Oregon, the Court imposed a $5,000 sanction for deposition misconduct by counsel. Accident Care Specialists of Portland, Inc. v. Allstate Fire and Cas. Ins. Co., No. 3:11-cv-01033-MO (D. Or. Jan. 6, 2014)(CM/ECF LIVE, Docket Entry No. 197).
Courts increasingly seem to be willing to sanction lawyers for instructing witnesses not to answer questions, even if the lawyer believes in good faith that the questions are far afield or even harassing. Rule 30(c)(2) provides three narrow grounds upon which a lawyer may instruct a deponent not to answer: (1) to preserve a privilege; (2) to enforce a limitation ordered by the court; and (3) to present a motion to terminate or limit the deposition under Rule 30(d)(3). That is it. If a lawyer instructs a witness not to answer under any other circumstances, sanctions may be imposed. See Layne Christensen Co., 2011 WL 6934112 at *2, 4 (holding that counsel should be sanctioned for improperly instructing a witness not to answer, however, agreeing not to characterize the payment of fees for continued deposition as a “sanction” if the lawyer and party voluntarily pay such costs). In addition to sanctions under Rule 30(d)(2) for impeding the fair examination of the witness, attorney fees under Rule 37(a)(5)(A) may be imposed following a successful motion to compel. Fed. R. Civ. P. 37(a)(5)(A).
Finally, in an interesting development, two courts have recently held that sanctions may be imposed for a lawyer’s failure to intervene when a deponent client engages in deposition misconduct. GMAC Bank v. HTFC Corp. stands out as perhaps the most egregious example of deposition misconduct by a witness that we have seen in our review of the case law. 248 F.R.D. 182 (E.D. Penn. 2008). The deponent repeatedly refused to answer legitimate questions, used a familiar four-letter word no fewer than 73 times on the record, and verbally accosted the lawyer taking the deposition. Id. at 187-190. The court fined the deponent’s lawyer personally under Rule 30(d)(2) and Rule 37(a)(5)(A) because his failure to intervene under the circumstances amounted to “endorsement and ratification” of his client’s conduct. Id. at 197-198. A district court within the Ninth Circuit has adopted the reasoning of GMAC Bank, finding that the “failure of an attorney to curb client misconduct during a deposition can have the effect, as it did here, of empowering continued misconduct.” Luangisa v. Interface Operations, No. 2:11-cv-00951-RCJ-CWH, 2011 WL 6029880, at *11 (D. Nev. Dec. 5, 2011). “It is not enough for an attorney to refrain from instructing a client not to answer. In fulfilling his or her duties as an officer of the court an attorney must take some affirmative step to ensure the deponent complies with the deposition rules.” Id.
D. Courts Have Wide Discretion to Tailor Sanctions to Each Specific Case.
Our review of the case law revealed that monetary sanctions are by far the most common form of sanction for deposition misconduct. Often, the party who was obstructed from fairly taking the deposition will move to compel further testimony under Rule 37(a). Commonly the moving party will seek to recover the cost of having to depose the witness twice, and will seek to recover the attorney fees required to bring the motion to compel. See e.g. Luangisa, 2011 WL 6029880 at *14; BNSF Railway Co., 2009 WL 3872043 at *3.
Despite the inclination toward monetary sanctions, courts are free under Rule 30(d)(2) to fashion “an appropriate sanction.” This may include the requirement that the deposition be continued at the courthouse in the presence of a judicial officer. GMAC Bank, 248 F.R.D. at 193. It could include censure or disbarment. Redwood, 476 F.3d at 470.
Sanctions can even include dismissal of a claim or cause of action. Glick v. Molloy, CV 11-168-M-DWM-JCL, 2013 WL 140100, at *3 (D. Mt. Jan. 10, 2013)(sanctioning a deponent for deposition misconduct and cautioning that the deponent’s “failure to appear at another deposition…or his refusal, without legal justification, to answer questions at his deposition, may result in the dismissal of this action as an appropriate sanction…”). In order to impose case-ending sanctions, a court must consider five criteria: 1) the public interest in prompt conclusion of litigation; 2) the need to manage the court’s docket; 3) the risk of prejudice to the party asking for the sanction; 4) the policy favoring disposition of disputes on their merits; and 5) the suitability of less drastic sanctions. Feuerstein v. Home Depot, U.S.A., Inc., 2:12-cv-1062 JWS, 2013 WL 4507612, at *4 (D. Ariz. Aug. 23, 2013) citing Con. Gen Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). Although less drastic sanctions will ordinarily be suitable, sometimes case-ending sanctions are appropriate. See Castillo v. St. Paul Fire & Marine Ins. Co., 938 F.2d 776 (7th Cir. 1991)(upholding case-ending sanctions for repeated deposition misconduct).
II. Approaches for Protecting Your Witness While Avoiding Sanctionable Conduct.
Most of us have defended a deposition in which the questioning lawyer asks questions that are far afield, and may even border on harassment. The case law makes clear that the last thing you should do is reciprocate with prohibited conduct such as speaking objections, argument or instructions not to answer questions. Such conduct may be sanctioned even in the face of your opponent’s misconduct. Cases like Redwood v. Dobson, supra, make clear that there is no “unclean hands” defense to a motion for sanctions. In that case, the Seventh Circuit imposed sanctions on all counsel for misconduct even though only one party was seeking sanctions, reasoning that mutual enmity does not excuse a breakdown in decorum. Redwood, 476 F.3d at 469.
Generally, “in the face of irrelevant questions, the proper procedure is to answer the questions, noting them for resolution at pretrial or trial, unless the questions are so pervasive that a motion under Rule 30(d)(3) is appropriate.” Luangisa, 2011 WL 6029880, at *10. Rule 30(d)(3) provides a mechanism by which an attorney may move to terminate or limit a deposition “on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses a deponent or a party.” Fed. R. Civ. P. 30(d)(3). For such a motion to be successful, however, the misconduct usually must be either pervasive or somewhat egregious. See Luangisa, 2011 WL 6029880, at *10, 12 (finding, however, that it was permissible for a deposing lawyer to suspend a deposition under Rule 30(d)(3) following the fifth relevance objection and fifth refusal to answer in the first few minutes of a deposition). In addition, a motion to terminate or limit a deposition must be filed without delay when a deposition is suspended. FCC v. Mizuho Medy Co. Ltd., 257 F.R.D. 679, 683 (S.D. Cal. 2009)(holding that a Rule 30(d)(3) motion must be filed immediately after a deposition is suspended or terminated).
In some instances it is obvious that a line has been crossed and it is appropriate to suspend a deposition and move under Rule 30(d)(3). Usually, it is less clear when poor questioning has crossed the line to bad faith or harassment. Courts recognize this state of limbo. “[T]here are many occasions in which a party taking a deposition may ask a question a deponent or counsel consider improper, but will be unable to show is asked in bad faith, or to annoy, embarrass or harass the witness.” Brincko v. Rio Properties, 278 F.R.D. 576, 584 (D. Nev. 2011). In Brincko, the court held that a lawyer may not instruct a witness not to answer questions the lawyer deems repetitious, argumentative or harassing, but must instead suspend the deposition and move for protection under Rule 30(d)(3). Id. at 581. But the court also suggested the remedy of an emergency dispute resolution conference with the court – a remedy we encourage you to consider if you are unsure whether improper questioning has crossed the line to bad faith or harassment. Id. at 584.
Local Rule 30-6, Motions Relating to Depositions, is the local rule analog of Rule 30(d)(3). In it the Court makes itself available to immediately intervene if “the parties have a dispute which may be resolved with the assistance of the Court, or if unreasonable or bad faith deposition techniques are being used….” LR 30-6. An immediate conference or hearing is available not only if unreasonable or bad faith deposition techniques are being used, but for any matter of dispute during a deposition. Id. This flexibility is emphasized by the Local Rule’s additional reference to the availability of a telephone conference under Local Rule 16-2(c), which in turn states that any party may ask for a conference under Rule 16 at any time. Id., LR 16-2(c).
In Brincko, the court encouraged the parties to take advantage of the availability of emergency conferences and noted that neither party had availed themselves of this opportunity. Id. at 584. Availing yourselves of the opportunity presented by Local Rule 30-6 will at a minimum show the court you are trying to exhaust the remedies available in order to continue with the deposition, and it may result in an immediate order limiting the conduct of the opposing lawyer without the expense and delay of a suspension and motion under Rule 30(d)(3).
III. Sanctions Are Available for Deposition Misconduct in Oregon State Court Despite the Absence of A Rule Analogous to Federal Rule 30(d)(2).
The absence of a provision in the Oregon Rules of Civil Procedure that is analogous to Federal Rule 30(d)(2) may explain the dearth of reported Oregon cases dealing with sanctions for deposition misconduct. That said, the Oregon Rules contain provisions that would permit the imposition of sanctions for certain types of deposition misconduct, and also contain many provisions similar to those in the Federal Rules that constrain deposition conduct.
As with the Federal Rules, objections in state court depositions must be made in a nonargumentative and nonsuggestive manner. ORCP 39 D(3). Similarly, a defending lawyer may not instruct a witness not to answer except to present a motion for court assistance, to enforce a limitation ordered by the court, or to preserve a privilege or constitutional right. Id. Further, the Multnomah County Circuit Court Civil Motion Panel Statement of Consensus states: “Speaking Objections - Attorneys should not state anything more than the legal grounds for the objections to preserve the record, and objection should be made without comment.” Civil Motion Panel Statement of Consensus (February 1, 2013). Accordingly, the contours of proper conduct and misconduct during depositions are not materially different whether in federal or state court.
Under the Oregon Rules, either party may suspend a deposition to immediately move for court assistance if a deposition is being conducted or hindered in bad faith, in a manner not consistent with the Oregon Rules, or in such a manner as to unreasonably annoy, embarrass or oppress the deponent or any party. ORCP 39 E(1). A party may also compel additional discovery if a deponent refuses to answer questions at a deposition, or if the answer is evasive. ORCP 46 A(2), (3). The prevailing party on a motion under ORCP 39 E(1) or 46 A(2) or (3) may be entitled to attorney fees incurred in bringing or defending the motion. ORCP 39 E(2); 46 A(4). While such fees may not properly be considered a “sanction,” they could nevertheless result in the imposition of a substantial monetary penalty on the party whose deposition misconduct necessitated the motion. In addition, the rules explicitly allow sanctions for violation of a discovery order, as well as imposition of attorney fees against the party who caused, or the counsel who advised, the violation. ORCP 46 B. Accordingly, if a party obtains an order prohibiting or enjoining certain deposition conduct, sanctions are explicitly available for violation of that order.
This article appeared in the Spring 2014 issue of the Oregon State Bar's Litigation Journal.