A reminder that uncooperative counsel risk sanctions for deposition misconduct
Hollywood often portrays legal drama as an elaborate game of “gotcha” where plot twists, courtroom antics, and public bickering set the stage for a battle of wits between the protagonist and opposing counsel. But in real life, the rules of civil procedure have far less patience for professional gamesmanship than movies and television might have us believe. For uncooperative counsel, an overly combative disposition may prove a surefire path to sanctions for attorney misconduct. Last month’s installation in this series acknowledged that litigation is an admittedly adversarial process. But there are limits. Let’s take a look at what happens when things go too far.
The first rule of federal civil procedure protects “the just, speedy, and inexpensive determination of every action and proceeding.” So when it comes to depositions, it’s no surprise that Rule 30(d)(2) provides for sanctions where conduct “impedes, delays, or frustrates the fair examination of the deponent.” This doesn’t mean that taking attorneys have carte blanche to ask anything they want. But there is a process. Rule 30(c)(2) notes that depositions proceed subject to objections based on alleged misconduct, officer qualifications, and the manner by which the examination takes place. Attorneys are limited in advising clients during a deposition, lest they risk accusations of coaching the witness. Rule 30(c)(2) limits non-answers to matters necessary to protect a privilege, enforce a court limitation, or contest the examination as being conducted in bad faith (upon which time the objecting party would seek a protective order from the court). Ultimately, the federal rules allow the objecting party to be heard without derailing the entire process. So attorneys with a gripe should not belabor the point. As outlined by Rule 30(c)(2), objections “must be stated concisely in a nonargumentative and nonsuggestive manner.” Failure to adhere may result in having to pay expenses and attorney’s fees to the other side for disrupting the process. Time is limited. Time is valuable. The deposition is a tool for discovery, not the place to argue your case.
A recent federal case serves as a reminder that being uncooperative may come at a cost. In Goode v. Ramsaur, the United States District Court for the District of Colorado considered a request for sanctions in response to alleged attorney misconduct at deposition. Plaintiffs accused defense counsel of improper speaking objections, interrupting the flow of the deposition, being uncooperative with the videographer and court reporter, and being argumentative towards plaintiffs’ counsel. The deposition transcript showed multiple instances where defense counsel interrupted the proceeding to contest witness instruction, the purpose for questioning the witness, and, in some instances, advised the witness not to answer certain questions altogether. Unfortunately for defense counsel, the court did not see these interruptions as justified exceptions to Rule 30(c)(2). Although the court lacked specificity to make a final conclusion as to the extent of sanctions, the court did decide that defense counsel’s conduct warranted sanctions nonetheless.
Cases like Goode not only highlight the importance of cooperation and party stipulations when conducting a deposition, but also demonstrate the importance of having a competent third party to ensure the deposition runs smoothly. With Readback, the Guardian conducts the deposition, handles exhibits, reads back testimony, and prevents parties from speaking over each other. At the same time, patented AI technology captures the record while Readback’s team of human transcribers ensures a verbatim transcript via live feed. Visit our Frequently Asked Questions page to learn more about what Readback has to offer, and schedule your next deposition with Readback today.
* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
