Some attorneys treat defending a deposition as an opportunity to be a jerk. Speaking objections, witness coaching and bogus instructions not to answer are all arrows in the quiver of the "Rambo" litigator. The Federal Rules of Civil Procedure, their state equivalents and the rules of professional conduct generally prohibit this conduct. The Federal Rules, for example, expressly authorize district courts to impose sanctions for this type of behavior. Indeed, since Rule 30 was amended in 1993 to add an express prohibition on this conduct, federal courts throughout the country have demonstrated a willingness to crack down on these tactics.

Less discussed is the responsibility of an attorney defending a deposition to affirmatively intervene to prevent their witness' misconduct. Although there are relatively few cases that address the issue, they make clear that counsel has an obligation to take affirmative steps to protect the integrity of the deposition by reining in their own Rambo witnesses.

The Delaware Supreme Court's recent decision in In re Shorenstein Hays-Nederlander Theatres Appeals, (Del. June 20, 2019) addresses the issue at length. There, a deponent engaged in a series of obstructionist and bad faith behaviors during her nine-hour deposition. Reviewing substantial portions of the transcript, the court concluded that her responses were "flagrantly evasive, nonresponsive and flippant" and that the deposition was "a colossal waste of time and resources." The court sua sponte endorsed the lower court's award of attorney fees against the client for the deponent's conduct notwithstanding the fact that the sanction was not challenged on appeal. The court, however, did not limit its criticism to the witness; it chastised her counsel for failing to stop the misconduct. Analyzing counsel's obligations under the Delaware Principles of Professionalism, the court held that "an attorney representing a client who engages in obstructionist behavior during the course of a deposition cannot simply be a spectator and do nothing." It emphasized that defending counsel has an ethical obligation to ensure the integrity of the deposition and must affirmatively intervene to prevent their client's bad-faith tactics.