(Photo: Andreas Praefcke)

There are difficult depositions. Unproductive depositions. Ones where people cry or are rude or angry.

And then there's Carole Shorenstein Hays.

The 70-year-old Tony award-winning theatre producer's behavior during her deposition was so awful that it prompted the Delaware Supreme Court to issue a 20-page addendum blasting her—and her counsel from Sullivan & Cromwell for failing to keep her in line.

“The deposition appears to have been a colossal waste of time and resources due to her behavior, which made a mockery of the entire deposition proceeding,” wrote Justice Karen Valihura for the court. “An attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing. Here, Hays's counsel made no apparent effort to curb her misconduct.”

Hays was defended at the deposition by Sullivan & Cromwell partner Brian Frawley, who could not immediately be reached for comment.

The underlying fight pits Hays, who owns San Francisco's Curran Theatre, against another San Francisco theatre owner, Robert Nederlander. He claims Hays improperly competed to put on the musical “Dear Evan Hansen” and the play “Harry Potter and the Cursed Child,” in violation of an LLC agreement governing another theater company in San Francisco, SHN, that the parties jointly own.

But that's not what's interesting. It's Hays' deposition, which began at 9:38 a.m. and concluded at 7:13 p.m.—and must have been sheer hell for Dechert partner Michael Doluisio, who led the questioning.

But don't take my word for it. The court published pages upon pages of transcripts.

Here's a mere sampling:

Q. How much time did you spend with your counsel to prepare for the deposition?

A. Sufficient

Q. How much is sufficient?

A. The appropriate amount needed.

Q. Can you give me an estimate of the amount of time?

A.  It was completely enjoyable.

Q. How many times did you meet with your counsel to prepare for the deposition?

A. Preparation is always a good thing.

Q. That wasn't my question. How many times did you meet with your counsel to prepare for the deposition?

A. I met with them – I'm not understanding the question.

Q. You told me you met with your counsel to prepare for the deposition.

A. Sure.

Q. How many times?

A. Well, see, I think of time as a continuum. So I think I met with them from the beginning to the end. And the beginning was the start, and then there was the rehearsal, and then there was the preview, and now it's what I think of as the performance. So, in my mind, I'm answering what you're asking. If you could be more specific. Do you want hours?

Q. Yes.

A. Oh, I don't wear a watch. So I know the sun coming up in the morning and the moon coming up at night.

So let's pause for a moment … time as a continuum? I met with them from the beginning to the end? Could she be any more obnoxious? Oh yes, she could.

Q. Can you tell me the number of times that you met with your counsel to prepare for the deposition? I'm looking for a number.

A. Well, I gave you that.

Q. What was the number? 

A. The number was the beginning to the end.

Q. How many times?

A. You know, I think – I don't recall.

Q: Did you review any documents to prepare for the deposition?

A. Oh, certainly.

Q. What documents did you review?

A. The ones that were put in front of me.

Q. What were they?

A. Documents.

Q. Can you recall any of them?

A. Yes.

Q. Tell me which ones. 

A. Many.

Q. Great. Tell me. 

A. Many, many, many.

Q. Tell me about them.

A. Well, they were full of words and communications and –

Q. Can you identify any of them by date or what type of document it is, or who the sender or recipient was?

Q. No

Here's another exchange, which sounds like an outtake from “Waiting for Godot.”

Q. When was SHN founded?

A. At the beginning.

Q. In what year?

A. The year it was founded.

Q. Can you give me a year?

A. No.

Q. Who founded it?

A. I was there.

Q. What do you mean when you say you were there?

A. I was there at the very beginning when it was – at the very Day One.

Q. Does that make you a founder?

A. Does giving birth to a child make you a mother?

Q. Yes, but that wasn't my question. My question was, the fact that you were there, does that make you a founder?

A. I believe it's semantics.

Q. Yeah, well, we're here today about semantics and words matter.

When Hays wasn't giving short, non-responsive answers, she gave long non-responsive answers, plus a dollop of theatrical pretentiousness.

When asked by Doluisio if there were “other Broadway-style shows that you have had conversations with people about bringing them to the Curran” her response was all over the map.

An excerpt:

“…[S]uddenly you have the right, the glee, the kaboom to ask me to go is that your personal e-mail – yes, we're going to emotionally water board you, we're going to keep you down as far as you can go, as though that's like what we do under the name of the law that's what you went to law school for and that you will go home and tell your wife you had a great day – that's what we're doing?

…I'm happy to stay until the lights come up and the lights go down. Don't bother me at all. Because I've been doing this 30 years. And you know what, I'm like Judy Garland, I can keep, keep, keep, – I got another song in me, and I know when I walk throughout the community, they're thrilled of what I'm doing.”

The trial court awarded attorneys' fees and costs to Dechert's client Nederlander for Hays' bad faith litigation tactics during the deposition—an award that was not disputed. (Personally, I think the court should have also awarded Doluisio a stiff drink. God knows the man earned it.)

Still, the Delaware high court took it upon itself to devote a substantial portion of its opinion to detailing the episode.

“An attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing,” the court said. “Here, Hays's counsel made no apparent effort to curb her misconduct.”

In a footnote, the justices did recognize that Frawley may have felt constrained to intervene, noting that Delaware rules stipulate that “conferences between the attorney and deponent during the deposition should not occur except to 'assert a privilege against testifying or on how to comply with a court order.'”

Nonetheless, the court stressed that there's a point where lawyers must do something to control their clients. “Perhaps this episode can be used positively as a lesson to those training new lawyers on deposition skills,” the justices suggested.

“Lawyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client persists in such conduct.”