Dealing With the Difficult Opponent

Two reports in federal circuit courts recommended remedial measures to deal with perceived incivility at depositions, such as the intimidation tactics described in the preceding articles.

In 1990, the Federal Bar Council Committee on 2nd Circuit Courts released its Report on the Conduct of Depositions, which attempted to find ways to curtail the use of abusive deposition tactics. The committee suggested: (1) limiting depositions to working days unless the parties stipulate or obtain leave of court; (2) allowing objections only if the question posed is harassing, seeks privileged information, or is irrelevant and there is substantial likelihood of prejudice to the deponent; (3) prohibiting “speaking objections”; and (4) prohibiting attorney-initiated conferences during depositions except to determine if the question calls for privileged information.











In addition, the committee offered suggestions for reducing motion practice, making court intervention by telephone more accessible, requiring parties to arrange for the production of documents prior to the deposition, and liberally applying sanctions when discovery rules are violated. Although one or two judges of the U.S. District Court for the Southern District of New York have urged adherence to these proposed guidelines, the proposals have not been adopted in the 2nd Circuit U.S. Court of Appeals.

The 7th Circuit U.S. Court of Appeals dealt with this problem in a slightly different context. In a study on incivility conducted in 1991 and 1992, its committee on civility found that uncivil behavior among lawyers (which the 7th Circuit described as frequent hostility toward opponents, inappropriate remarks to witnesses during deposition, refusal to schedule depositions at mutually convenient times, and manipulations of phone calls and the mail) quite commonly manifests itself during the deposition phase. In fact, the committee noted in its report that “[d]epositions, conducted by lawyers without direct judicial supervision, can be one of the most uncivil phases of trial practice.” The committee also reported that the availability of sanctions perpetuates incivility because “[s]eeking sanctions has become a trial strategy, much like any other strategy.”

The committee recommended law school civility training, law firm training programs, and court-adopted litigation standards as possible solutions to this problem. The committee also urged adoption of proposed standards of professional conduct that would enumerate proper behavior and courtesy to be shown to other counsel and the court when an attorney appears before the 7th Circuit. The 7th Circuit’s Court of Appeals and district courts formally adopted these standards in December 1992.

Judicial Decisions

In recent years, courts have taken a more active role in mediating deposition disputes and in laying down rules for deposition conduct. Defending lawyers who interfere with the factfinding mission of depositions by interjecting suggestive objections or instructing witnesses not to answer have been sanctioned; interrogators who abuse the discovery process by prolonged questioning on irrelevant and highly personal topics, or insisting on answers to unfairly argumentative questions, have also found themselves subject to fines and reprimands.

Judicial decisions from a variety of jurisdictions have addressed attorney abuse at depositions. Most judges have acted out of concern that the factfinding purpose of depositions was being derailed by attorney misconduct. Sometimes this same concern motivates judges to keep the factfinding process from becoming bogged down by pre-deposition jousting. For example, in a case pending in the U.S. District Court for the Eastern District of Pennsylvania, attorneys for both sides sent U.S. Magistrate Judge Jacob P. Hart offensive letters concerning the scheduling and scope of depositions. Hart found that the five letters in question collectively contained inflammatory language such as “comical,” “desperate,” “implausible” and “unworthy of belief”; warned that in the future a sanction of $50 would be strongly considered for similar insults; and advised the attorneys that “[a]dult behavior is strongly recommended for the duration of this lawsuit.” DiBartolo v. Philadelphia, Civ. No. 99-1734 (E.D. Pa., order entered July 6, 2001).

The Rhode Island Supreme Court, on a writ of certiorari, welcomed the opportunity to discuss issues relating to deposition abuse. The court first ruled that the defender may instruct a deponent not to answer only if the question calls for privileged information. The court then directed practitioners engaged in deposition practice in Rhode Island to refrain from (1) offering gratuitous comments; (2) “cuing” a deponent by objecting; (3) instructing the witness not to answer, unless the question calls for privileged information; and (4) engaging in dialogue on the record. Finally, the court instructed any counsel or party who believes that these conditions are not being met to call for a suspension of the deposition and to telephone the court.

Similarly, the federal District Court for the District of Maryland has nine discovery guidelines, three of which address deposition practice.

One commentator made the interesting argument that an opponent’s discovery misconduct should be admissible at trial as an “admission by conduct” of the weakness of its case. Edward J. Imwinkelried, A New Antidote for an Opponent’s Pretrial Discovery Misconduct: Treating the Misconduct at Trial as an Admission by Conduct of the Weakness of the Opponent’s Case, 1993 Brigham Young University Law Review 793.

Hall v. Clifton Precision Guidelines