In Security National Bank v. Abbott Laboratories,1 a federal court sua sponte sanctioned a lawyer for what the court believed to be unethical and obstructionist deposition tactics. This case and other recent cases have led lawyers and courts alike to focus on obstreperous conduct during the discovery process. This article identifies the intersection between the discovery rules and the rules of professional responsibility and then focuses specifically on how professional responsibility applies to the deposition process – from noticing the deposition, to preparing the witness, to taking and defending the deposition, to postdeposition practices.
Why It’s Happening
Undisciplined behavior in discovery, and particularly depositions, unfortunately is not a new phenomenon.
In the late 1990s, judges and legal commentators began to highlight “Rambo” litigation tactics and the increasing lack of civility, respect, and decorum in the discovery process.2 The cause of this rise in aggressiveness is not known for certain, but there are several possible contributing factors and circumstances. One potential cause was and is the increase in “national” practice: lawyers practicing outside their local communities and in places where they might never practice again. When practicing on the national scene with few “repeat players” – that is, against a lawyer who you may never see again – there is a tendency to burn bridges and do things you would not do with someone you know and work with repeatedly.
The Hot Seat: Tips for Winning at Deposition
A deposition is a powerful discovery tool. But lawyers can squander the opportunity without proper preparation and the tools to effectively interview witnesses. At the same time, lawyers who represent witnesses must prepare them for what’s coming. Best-selling author and attorney Shane Read says preparation is key. Read wrote the 2013 book, Winning at Deposition, which won the highest publication award for professional excellence from the Association for Continuing Legal Education.
On May 7, Read taught a full-day, live seminar on depositions, called “Winning at Deposition,” sponsored by State Bar of Wisconsin PINNACLE™. Webcasts of the seminar are scheduled for June 2 and June 19. Here are some of Read’s tips when deposing and representing witnesses in depositions.
Know the case, and know your opponent’s case. Before you get into a deposition, you must know what the case is about. What’s your bottom-line message? If you don’t know that, you won’t get the answers you need from the deposition.
Know the law. You must know the facts needed to prove your claim.
Listen. Pay close attention to the answers. Make sure the witness answers the question you asked.
Establish control over experts. Expert witnesses often can sense if a lawyer is going to find the weaknesses in their opinions, so prepare to find those weaknesses (for example, attacking their assumptions about the case).
Prepare your witness. You can’t correct mistakes later if a witness doesn’t do well. A witness’s performance matters because more than 90 percent of cases settle, so treat a deposition like trial testimony.
Play devil’s advocate. Look at the case from the other side. What are the important documents? What are the important questions the opposing lawyer will ask?
Analyze the deposition. Find the three most important answers and use those at trial rather than trying to find 10 pretty good ones. Focus on the best points you can make.
Don’t get lost in the details. You need to present your case in a compelling way. Don’t let the emotional aspects get lost in the factual details.
Overcome obstacles. Learn how to frame questions so you can get the answer you need to win a case, how to proceed when a witness won’t answer the question, and how to handle disruptive or rude opposing counsel. There are steps you can take to avoid having to compel an answer through a court order.
Source: Joe Forward, “The Hot Seat: Tips for Winning at Deposition,” InsideTrack (April 15, 2015).
Additionally, the pressures and competitive changes in the modern legal market have led some lawyers to put a premium on winning the case at hand at any and all cost, irrespective of ethics or discovery rules. Lawyers want to please their clients and ultimately to win, to secure favor and future business. To do so, unfortunately, lawyers are more willing to push the envelope on tactics during the discovery process.
Why? Because it works. Obstructive conduct in discovery may prevent “bad facts” from seeing the light of day. It also increases the cost of the litigation, putting more pressure on litigants and affecting not only the merits of the case but also the settlement value.
Changes in the Cost of Obstructive Behavior
Until recently, lawyers had little reason not toengage in obstructive conduct – the benefits were great, and the disadvantages were minimal. Obstructive behavior during the discovery process is effective because it hampers the other side in discovering facts and increases the cost of litigation. On the other hand, there was little downside in pursuing the obstructionist conduct. Courts routinely ignored discovery disputes, disdaining to enter the fray and instead casting a “pox on both houses” in the dispute.
But courts have begun focusing on obstructionist conduct. The increased use of videotaped depositions has permitted courts to see and hear firsthand the true nature and cost of inappropriate conduct. The viewer can hear the tone of the questions, hear any harassment of the witness, and see any physical actions that occurred at the deposition.
As a result, courts are becoming more assertive in sanctioning obstructionist conduct, thereby increasing the costs associated with such tactics. Negative ramifications include regulatory sanctions (the relevant bar can impose costs on lawyers and perhaps even remove a lawyer’s license through suspension or expulsion, depending on the severity of the conduct), court sanctions that can significantly affect the parties (for example, waiving rule-based discovery limitations, waiving attorney-client privilege due to improper coaching, allowing adverse inferences to be made based on obstructive conduct, or dismissing claims), monetary sanctions (which the lawyer might have to pay), and ethics sanctions for the lawyer.
Ethics Requirements for Discovery Conduct
Lawyers should be familiar with the ethics codes of professional responsibility, both from the Model Rules for Professional Conduct promulgated by the American Bar Association and the lawyer’s relevant jurisdiction. In Wisconsin, Wisconsin’s Rules of Professional Conduct for Attorneys set the bar (no pun intended).3 The rules mandate certain conduct of lawyers at all times – including during the discovery process.
The key ethics maxims most relevant to lawyers in the discovery process (including depositions) can be summed up as a requirement to tell the truth, play fair, and respect the court, the opposing party, and opposing counsel. Failure to adhere to these tenets might constitute the obstreperous behavior that courts are recognizing, and sanctioning, with increased frequency.
Tell the Truth. Model Rule 4.1 prohibits lawyers from misrepresenting facts when dealing with others on behalf of a client: “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”4
Further, Model Rule 8.4 makes it misconduct for a lawyer to:
“(a) [V]iolate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; …”
This rule provides a clear and additional obligation for ensuring that lawyers are honest and truthful.5
In dealing with tribunals, lawyers have an added duty of candor. Model Rule 3.36 provides that:
Hon. Michael J. Aprahamian, Yale 1992, is a Waukesha County Circuit Court judge. Before taking the bench, he was a partner at Foley & Lardner LLP, where he was a commercial litigator and the firm’s partner in charge of ethics training.
Jesse L. Beringer, Marquette 2013, is with Foley & Lardner LLP, Milwaukee, and practices in the firm’s business litigation and dispute resolution practice group.
“(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; … (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
A lawyer must correct, using reasonable remedial measures, any misrepresentation of fact made to a court.7 However, the misrepresentation need not occur in a courtroom – depositions are considered court proceedings, regardless of location.8
Play Fair. Model Rule 3.49 requires lawyers to be fair to both the opposing party and opposing counsel:
“A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; … [or] (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; …”
Respect Each Other. While it seems obvious, the rules also explicitly require that lawyers respect one another and third parties. Model Rule 4.4 specifies that a lawyer cannot “use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”10
Wisconsin has specifically recognized that low-blow obstreperous tactics, including ones engaged in during discovery, are in tension with a lawyer’s ethical obligations. In Gainer v. Koewler,11 the court of appeals recognized that if both proper and improper behavior (things clearly of unequal value) are given the same value in the courtroom, improper conduct would displace the proper conduct. The court stated that the legal system must undertake the duty of dealing with lawyers’ improper conduct and “Rambo” litigation tactics to maintain the integrity of the judicial system.12
Perhaps one of the ripest opportunities for improper behavior occurs during depositions. Depositions often occur in informal settings, such as hotel or law firm conference rooms, not in courtrooms. Usually the only court “official” present (other than the lawyers, who are technically officers of the court) is the court reporter – rarely the judge. The informality often presents opportunity for disagreement and “fighting dirty” if lawyers think it is in their interest to do so. This “fighting dirty” is the type of improper behavior that courts so frequently caution against, making it important for lawyers to recognize each step in the deposition process and the potential for sanctions if they are not careful.
A deposition consists of numerous steps that ultimately culminate in the actual taking of the deposition. Each step in the process is an opportunity, whether lawyers realize it or not, for obstructive behavior that can trigger some sort of sanctionable conduct. Either party can engage in the behavior, and Wisconsin law gives either party (or the deponent) a right to move for terminating or limiting the deposition if he or she can show “that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.”13
Additionally, it is important to keep in mind that all interactions with opposing counsel during the deposition must be courteous and respectful, even if opposing counsel’s actions may be egregious and constitute sanctionable misconduct. Responding in an inappropriate manner to inappropriate conduct by opposing counsel can lead to sanctions, or losing any benefit or relief one may have been positioned to obtain from opposing counsel’s conduct.14
Taking the Deposition
The first opportunity for improper conduct arises in the context of taking the deposition – the formality of providing notice and the task of questioning the witness.
Notice. Rule 30(b)(1) of the Federal Rules of Civil Procedure provides that “reasonable written notice to every other party” must be given of the deposition.15 The notice must state “the time and place of the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.”16 Wisconsin’s requirement is substantially similar: requiring “reasonable notice in writing to every other party to the action” and that the time and place of the deposition and the deponent’s name and address be given.17
The crux of the requirement is reasonableness, but neither rule defines what that means. As a general matter, it is largely a timing requirement: the deposition must be scheduled far enough in advance to allow witnesses adequate time to prepare and to fit the deposition into their schedules. Serving a deposition notice only a few days before the deposition is not only inconsiderate, but also can constitute harassment of the witness. Should this occur, counsel for the witness may be able to move for a protective order to prevent the deposition from occurring if the noticing lawyer refuses to reschedule; further, the noticing lawyer may be subject to sanctions.
If the statute does not provide a time limit, lawyers might opt to follow some best practices concerning the noticing of depositions:
Always try to provide at least 10 days’ notice.
Discuss with opposing counsel a mutually convenient time to notice the deposition.
State in a cover letter accompanying the notice that you are amenable to scheduling the deposition at a mutually convenient time.
The notice triggers the obligations under the rules. One cannot seek sanctions or relief for a failure to appear if a notice is not properly served.
Questioning the Witness. The examining lawyer in a deposition must keep in mind not only ethics rules but also rules of decorum that the Wisconsin Supreme Court has set forth. Specifically, the supreme court requires that at all times – including in depositions – lawyers must “be guided by a fundamental sense of integrity and fair play in all their professional activities”; “[b]e civil in their dealings with one another … and conduct all court and court-related proceedings, … including discovery proceedings, with civility and respect for each of the participants”; and “[a]bstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive,” among others.18 Further, and specific to discovery, lawyers may not “pursu[e] or oppos[e] discovery arbitrarily or for the purpose of harassment or undue delay,” which includes deposition questioning.19
The increased use of videotaped depositions has permitted courts to see and hear firsthand the true nature and cost of inappropriate conduct.
As a general matter, questioning in depositions in Wisconsin state courts is to be conducted “as permitted at trial.”20 This means that the examining lawyer is able to ask leading, open-ended, completing, repetitious, general-to-specific, and summary questions – subject, of course, to appropriate objections. While broad lines of questioning may be permitted, the relevance must be weighed against purposeful efforts to harass or intimidate, which are not permissible.21 Furthermore, inquiring directly into privileged matters is generally inappropriate.22
It is important to have these considerations in mind when questioning a witness. Lines of questioning that are wholly irrelevant and done only to intimidate, harass, or threaten a witness are inappropriate under the discovery rules and the ethics rules, and as such are objectionable and provide a basis for seeking a protective order. Additionally, the examiner’s tone during the questioning – such as sarcasm or mimicking the witness – might be inappropriate.23
Defending the Deposition
A lawyer might engage in improper conduct while defending the deposition. This can occur during witness preparation or during the deposition itself.
Preparing the Witness. Model Rule 1.1 and SCR 20:1.1 require that a lawyer provide competent representation to clients. Competent representation includes preparing a client-witness before the deposition is taken. After notice of a witness’s deposition is received, the lawyer must ensure that the witness is adequately prepared. Preparing a witness for a deposition, however, is not the same as improperly coaching a witness. The rules forbid lawyers from attempting to inappropriately influence a witness’s testimony by reworking facts for the witness, instructing the witness to not remember,24 or providing a witness a “Script Memo,” among other things. If a lawyer counsels or assists the witness to testify in a way that does not match with the witness’s own recollection of the facts (that is, falsely), the lawyer runs afoul of Model Rule 3.4(b) and SCR 20:3.4(b).25 On the other hand, permissible preparation techniques26 include the following:
Instructing the witness to tell the truth;
Asking the witness to reconsider his or her recollection of the case in the light of other evidence. It is permissible to test the witness’s memory or verify the witness’s story in this manner without engaging in improper coaching;
Discussing lines of hostile cross-examination;
Rehearsing the witness’s testimony;
Suggesting a choice of words;27 and
Suggesting “home bases” for the witness to focus on, such as a central theme for the witness’s version of the case.28
Special attention should be taken in the preparation of “corporate representatives” who, under Federal Rule of Civil Procedure 30(b)(6) or Wis. Stat. section 804.05(2)(e), consent to testify on behalf of a corporation. Under these rules, a party can provide notice of the deposition of an organization by identifying in the deposition notice “with reasonable particularity the matters on which examination is requested.” The representative must testify “as to matters known or reasonably available to the organization.” Using a witness who is unprepared and unable to testify about the pertinent topics is tantamount to a failure to appear and thus sanctionable.29
Best practices in relation to rule 30(b)(6) witnesses include not only preparing the witness on each topic but also serving written objections to overbroad topics before the deposition. If necessary, it might be helpful for the witness to prepare and use a timeline or a list of specific, key facts to ensure that he or she is prepared to answer questions on the designated topics. To be sure, the “cheat sheet” will become an exhibit to the deposition, but so what? If it contains accurate information, there is little downside in assisting the witness so that the deposition does not turn into a memory contest.
Defending a Witness. As a general matter, the Model Rules (and Wisconsin’s parallel rules under SCR chapter 20) require that “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client,” which includes refraining from unnecessarily prolonging or delaying a deposition.30
A key component of adequately defending a witness in a deposition, however, is making objections, which can hinder or slow the deposition substantially. Rule 30(c)(2) of the Federal Rules of Civil Procedure makes clear that depositions proceed despite objections and testimony is taken subject to the objections and provides limited circumstances for instructions not to answer:
“An objection at the time of the examination – whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition – must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent 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).”
Wisconsin’s counterpart, Wis. Stat. section 804.05(4)(b), provides some minimal guidance to follow when making objections. The statute requires that all objections about the qualifications of the officer taking the deposition, the manner of taking the deposition, the evidence presented at the deposition, and any procedural objections must be noted.31 If a witness refuses to answer, the court can rule via telephone on an objection. But, if a court ruling is not sought, “the evidence objected to shall be taken subject to the objections.”32 Notably, the statute does not speak to what kinds of objections are proper or how objections should be stated.
Making inappropriate objections can lead to sanctions for the defending lawyer.33 More specifically, “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.”34 Wisconsin provides that if discovery is being frustrated, as when a deponent refuses to answer a question, the questioning lawyer may move for an order compelling an answer, and that expenses can be awarded in accordance with the granting or denial of the motion, if warranted.35
Further, “At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.”36
Wisconsin has a substantially similar provision but specifies that the motion must be made in “the court in which the action is pending.”37
Types of Objections
Form Objections. One common objection made is an objection to the form of the question. At least one court has held that form objections are inappropriate when they do not specify a basis for the objection.38 However, other courts have indicated that form objections are actually the only proper objections that a lawyer can make at a deposition.39 Indeed, making an objection only to form without providing a supporting basis protects the lawyer from being accused of improper coaching.
There are a few things a lawyer can do to assess and mitigate risks when making form objections at a deposition. First, determine if the court in the jurisdiction in which the deposition is being taken has any rules relating to deposition objections – given the brevity of most local rules in circuit courts, it may not be surprising to find that such a rule does not exist. Research the judge on the case – has he or she ever had a similar case, or even made remarks at a public function about this sort of deposition conduct? If so, that is likely the best practice to follow. Assuming there is no relevant circuit court rule and that the judge has not indicated his or her views, it would be prudent to establish ground rules with opposing counsel about the nature and form of objections that are to be made at the deposition, either in a letter or email before the deposition or on the record at the beginning of the deposition.
Speaking Objections. “Speaking objections” are universally recognized as inappropriate.40 Such objections typically consist of a lawyer’s comment that points out an alleged problem with the question and somehow suggests how the deponent should respond to the question posed.41 Rephrasing the question posed is also a sort of speaking objection. Additionally, if a witness’s answer parrots a lawyer’s objection (for example, the lawyer objects to the question as “speculative,” and the witness states that he or she “cannot answer” or “would be speculating”), that is indicative of an improper objection and thus improper coaching. Several cases have found that lawyers’ use of the phrases “You can answer, if you know” or “Don’t guess” are also types of improper speaking objections warranting sanctions.42 In Wisconsin, as in most jurisdictions, courts have little tolerance for speaking objections.43
Instructions Not to Answer. The advisory committee notes to rule 30 of the Federal Rules of Civil Procedure suggest only three instances in which such an instruction may be appropriate – “to claim a privilege or protection against disclosure (e.g., as work product), to enforce a court directive limiting the scope or length of permissible discovery, or to suspend a deposition to enable presentation of a motion under paragraph (3).”44 Courts, including the Seventh Circuit, have strictly construed these exceptions.45
In Wisconsin, an instruction to a deponent not to answer a question can lead to a motion and order compelling discovery.46 Should the witness give an evasive or incomplete answer in lieu of not answering at all, a motion and order compelling discovery can still result.47
The best practice when faced with a line of questioning that is inappropriate or harassing is to object and then adjourn the deposition to seek a protective order. In light of this, a good practice to follow is to determine whether there are any other nonobjectionable lines of questioning that can be pursued. If so, you can suggest to the deposing lawyer that the objectionable questions be withdrawn and reserved to the end of the deposition, which will permit the deposition to continue on other appropriate lines of questioning, subject to the anticipated motion for a protective order.48
Excessive Objections. Lawyers can be sanctioned for making a substantial number of objections during a deposition if the excessive number of objections is found to be obstructionist.49 The problem is that if a proper objection is not raised during the deposition, it is considered waived.50 If you anticipate having to make many objections in your deposition, you may want to ask the opposing counsel for a continuing objection to a particular line of questioning so that your objections will not be seen as interfering with the questioning. Alternatively, you may wish to have a conversation with the examining lawyer outside the witness’s presence to explain the nature of the objection, in hopes of getting the lawyer on track or the lawyer and the witness on the same page. Ultimately, you should be selective when making objections.
Conference with Witness. Generally, having a private conference with the witness while a question is pending is impermissible, regardless of who initiates it – unless it is done to determine whether a privilege attaches and may be waived if the question is answered.51 A lawyer taking a break to have a conference with the witness while a question is pending should state on the record that the reason for the private conference is to determine whether a privilege attaches, and then after the conference, state on the record the result of the conference, that is, whether a privilege attaches and prevents the witness from answering the question.
There is no general rule as to whether, during normal breaks and adjournments, a discussion with the witness about the deposition is permissible. Many local rules and some case law, however, have deemed such discussions with witnesses about their testimony or future testimony to be inappropriate.52
Such rules are troubling. Certainly the intent is to protect the truth and prevent improper coaching, but they nonetheless are in tension with Model Rule 3.3, which prohibits lawyers from offering evidence from a client if the lawyer knows the evidence is false. If the lawyer believes that his or her client testified incorrectly to certain facts at the deposition, the local rules would prevent the lawyer from discussing the error with the witness to remedy the error on the record, as is the lawyer’s duty under Rule 3.3.
While one should certainly check the local rules to determine if there is a rule governing private conferences with witnesses, do not be surprised if one does not exist. “No clear rule currently exists in most jurisdictions. However, except in limited circumstances, the most sensible approach would be to prohibit the deponent and her attorney from discussing the substance of prior or future deposition testimony during short recesses agreed to by all counsel.”53
Obstruction by the Witness. Lawyers are certainly not the only ones obstructing depositions. Witnesses, in some instances, are just as guilty – if not more guilty – of doing so. Examples of obstructionist conduct by witnesses include engaging in abusive conduct (including swearing),54 giving evasive answers,55stating objections,56 and engaging in dilatory tactics.57
Certainly, witnesses can be sanctioned for their own obstructive and inappropriate conduct. However, the witness’s lawyer is also subject to sanctions if he or she simply allows the deposition to deteriorate and fails to try and rectify his or her client’s behavior.58
After the Deposition
Once the deposition has ended, a few tasks remain. Changes to the deposition are permitted and must be made within 30 days or risk not being part of the record.59 Further, under federal rules the errata sheet must state specific reasons for each change, or be excluded.60
Some federal courts are willing to allow substantive changes to the transcript, whereas others are not.61
In Wisconsin, Wis. Stat. section 804.05(6) provides that the deposition may be submitted to the deponent for changes and must be returned, signed, within 30 days. Notably, the statute provides “[a]ny changes in form or substance” can be made to the deposition.62 Of course, any changes – substantive or not – must comport with a lawyer’s ethical obligations. If substantive changes are made, a lawyer should be permitted to reexamine the witness regarding the change, and could ask the court for reimbursement for reopening the deposition because of the substantive change.
The deposition transcript and how it can be used is also an important issue. Rule 32 of the Federal Rules of Civil Procedure provides that an adverse party can use the deposition of a party, agent, or designee “for any purpose.”63 That means it can be used in opening, played without the witness on the stand, or used during the examination of other witnesses.
At trial in Wisconsin, the testimony can be used by “any party” for the purposes of “contradicting or impeaching” the deponent’s testimony at trial, as well as other limited purposes.64 As under the federal rules, the lawyer using deposition testimony must be cautioned that additional parts of the deposition may be offered if in fairness they should be considered with the other part introduced.65 The rule also allows “any party” to “introduce any other parts,” if triggered.66
In the more likely scenario, the case might be decided at the summary-judgment stage. Deposition testimony is crucial evidence in the summary-judgment record, but the lawyer must be careful and thorough in making citations to the transcript. Presenting false statements of fact, misrepresenting facts, and not taking reasonable remedial measures to correct the same run afoul of Model Rule 3.3 and SCR 20:3.3.67
Obstructive and inappropriate deposition conduct frustrates our legal system, adding expense and delay to an already expensive and drawn-out process. Courts have become more vigilant in protecting the process and taking aggressive actions against litigants and attorneys deemed to have violated the discovery rules or the rules of professional responsibility. Best practices in the taking and defending of depositions will ensure compliance with the rules, foster civility and decorum in discovery, and mitigate the risk of sanctions against you and your client.
1 229 F.R.D. 595 (N.D. Iowa 2014).
2 See, e.g., Gainer v. Koewler, 200 Wis. 2d 113, 546 N.W.2d 474 (Ct. App. 1996).
3 SCR ch. 20.
4 Wisconsin’s equivalent is found in SCR 20:4.1 and varies slightly from Model Rule 4.1. It provides in relevant part, “(a) In the course of representing a client a lawyer shall not knowingly:
(1) make a false statement of a material fact or law to a 3rd person; or (2) fail to disclose a material fact to a 3rd person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by SCR 20:1.6.”
5 Again, Wisconsin’s equivalent (SCR 20:8.4) differs from Model Rule 8.4 in terms of sanctionable conduct it addresses:
“It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; … (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers; … (g) violate the attorney’s oath; … (i) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities. Legitimate advocacy respecting the foregoing factors does not violate par. (i).”
6 See also SCR 20:3.3.
7 Model Rule 3.3.
8 Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993) (“Counsel should never forget that even though the deposition may be taking place far from a real courtroom, with no black-robed overseer peering down upon them, as long as the deposition is conducted under the caption of this court and proceeding under the authority of the rules of this court, counsel are operating as officers of this court. They should comport themselves accordingly; should they be tempted to stray, they should remember that this judge is but a phone call away.”); see also Abu Dhabi Commer. Bank v. Morgan Stanley & Co., No. 08 Civ. 7508(SAS), 2011 WL 4526141 (S.D.N.Y. Sept. 21, 2011) (“Even though depositions may seem less formal than court proceedings, and usually occur outside the view of the public and without judicial supervision, they are an integral part of the Court’s procedures and a staple of modern litigation.”).
9 See also SCR 20:3.4.
10 See also SCR 20:4.4.
11 Gainer, 200 Wis. 2d at 123.
12 See id. at 122-23. See also Aspen Servs. Inc. v. IT Corp., 220 Wis. 2d 491, 583 N.W.2d 849 (Ct. App. 1998) (sanctioning attorneys for lack of civility and “over litigation”).
13 Wis. Stat. § 804.05(5).
14 See, e.g., Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007) (noting that witnesses and lawyers were “goaded” by inappropriate conduct, “but their responses – feigned inability to remember, purported ignorance of ordinary words…, and instructions not to respond that neither shielded a privilege nor supplied time to apply for a protective order – were unprofessional and violated the Federal Rules of Civil Procedure as well as the ethical rules that govern legal practice”); Castillo v. St. Paul Fire & Marine Ins. Co., 938 F.2d 776, 779 (7th Cir. 1991) (hosting lawyer refused to permit questioning lawyer to use phone to call judge, stating “[if] you step outside this room and touch the telephone, and I’ll take care of that in the way one does who has possessory rights”); Paramount Communications Inc. v. QVC Network, 637 A.2d 34 (Del. 1994) (identifying inappropriate conduct of Joe Jamail at deposition, including “Don’t Joe me, asshole. You can ask some questions, but get off of that. I’m tired of you. You could gag a maggot off a meat wagon,” and telling the lawyer, “You have no concept of what you’re doing.”).
15 Fed. R. Civ. P. 30(b)(1).
17 See Wis. Stat. § 804.05(2).
18 See SCR 62.02(1).
19 See SCR 62.02(2)(c).
20 Wis. Stat. § 804.05(4)(a); see also Robert B. Corris et al., Wisconsin Discovery Law and Practice § 3.95 (State Bar of Wisconsin PINNACLE, 4th ed. 2011).
21 See Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007) (noting inappropriateness of question, “are you involved in any type of homosexual clique with any other defendants in this action?”).
22 Valassis v. Samelson, 143 F.R.D. 118, 124-25 (E.D. Mich. 1992) (stating that Model Rule 4.4 “has been interpreted as preventing an attorney from inquiring about privileged matters”).
23 See, e.g., M. Vanderveer, Face to Face with an Abusive Attorney, Nat’l L. J., May 14, 1984, at 13.
24 See, e.g., Debra Cassens Weiss, Defense Lawyer’s advice was ‘playbook on how to lie without getting caught,’ sentencing judge says, ABA Journal (Sept. 12, 2013).
25 See Corris et al., supra note 20, § 3.107; In re Disciplinary Proceedings Against Eisenberg, 2013 WI 37, ¶¶ 11, 16, 42-44, 347 Wis. 2d 116, 833 N.W.2d 46 (stating that the lawyer’s misconduct of refusing to instruct the witness to answer proper deposition questions and actually encouraging the witness to make objections, among other conduct, constituted “serious ethical violations” and represented “a flagrant misuse of the law”).
26 For additional discussion of ethical preparation tactics, see Erin C. Asborno, Ethical Preparation of Witnesses for Deposition and Trial, ABA Litigation Section, Dec. 13, 2011; Note, Professional Conduct and the Preparation of Witness for Trial: Defining the Acceptable Limitations of Coaching, 1 Geo. J. Legal Ethics 389 (1987-88); Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995-96).
27 See, e.g., District of Columbia Ethics Op. 79 (1979).
28 See, e.g., EEOC v. Mitsubishi Motor Mfg. of Am. Inc., No. 96-1192, 1997 U.S. Dist. LEXIS 24505 (C.D. Ill. Oct. 23, 1997).
29 See, e.g., Black Horse Lane Assocs. LP v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000).
30 See Model Rule 3.2; SCR 20:3.2.
31 See Wis. Stat. § 804.05(4)(b).
33 See Fed. R. Civ. P. 30(d)(2); Wis. Stat. § 804.12.
34 Fed. R. Civ. P. 30(d)(2).
35 See Wis. Stat. § 804.12(a), (c).
36 Fed. R. Civ. P. 30(d)(3)(A).
37 See Wis. Stat. 804.05(5).
38 See Security Nat’l Bank, 299 F.R.D. at 601-03 (also noting contrary authority at 603).
39 See, e.g., Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at 5* (D. Kan. Jan. 5, 2012) (holding that objection should be limited to “form” to avoid speaking objection, unless opposing counsel requests further clarification of the objection).
40 See, e.g., Specht v. Google Inc., 268 F.R.D. 596 (N.D. Ill. 2010) (“Objections that are argumentative or that suggest an answer to a witness are called ‘speaking objections’ and are improper under Rule 30(c)(2).”); Security Nat’l Bank, 299 F.R.D. at 603-09 (citing cases and examples).
41 The Advisory Committee notes to the 1993 amendments of Fed. R. Civ. P. 30 state that speaking objections are improper: “Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.”
42 See Cincinnati Ins. Co., No. 11-2075-JAR, 2012 WL 28071, at *5; Security Nat’l Bank, 299 F.R.D. at 604-07.
43 See Gainer, 200 Wis. 2d at 123-24.
44 Fed. R. Civ. P. 30, advisory committee notes (1993 amendments).
45 See, e.g., Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007) (holding that lawyer acted inappropriately in instructing witness not to answer inappropriate questions, yet never presenting a motion for a protective order); Castillo v. St. Paul Fire & Marine Ins. Co., 938 F.2d 776 (7th Cir. 1991) (affirming dismissal of case for discovery abuse, including numerous unfounded instructions not to answer, even questions preapproved by the court); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977); Coach Inc. v. Hubert Keller Inc., 911 F. Supp. 2d 1303 (S.D. Ga. 2012); Brinko v. Rio Props. Inc., 278 F.R.D. 576 (D. Nev. 2011).
46 See Wis. Stat. § 804.12.
47 See Wis. Stat. § 804.12(1)(b).
48 See Corris et al., supra note 20, § 3.111.
49 See Fed. R. Civ. P. 30, advisory committee notes (1993 amendments) (“The making of an excessive number of unnecessary objections may itself constitute sanctionable conduct, ….”); Craig v. St. Anthony’s Med. Ctr., 384 Fed. App’x 531, 533 (8th Cir. 2010) (affirming sanction against lawyer who made substantial number of objections that “impeded, delayed, or frustrated [a] deposition”).
50 See A. Darby Dickerson, The Law and Ethics of Civil Depositions, 57 Md. L. Rev. 273, 315 (1998) (noting that if objection is proper, (it may be waived, if not raised).
51 Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 902 (7th Cir. 1981); Perry v. Leeke, 488 U.S. 272, 281 (1989); Dickerson, supra note 50, at 315, 319 (“[U]sing a conference to suggest an answer is analogous to an attorney making speaking objections to coach the witness’s response.”).
52 Perry, 488 U.S. at 284 (holding that counsel can be prohibited from talking to witness during long breaks); Hall, 150 F.R.D. at 528 (“During a civil trial, a witness and his or her lawyer are not permitted to confer at their pleasure during the witness’s testimony. Once a witness has been prepared and has taken the stand, that witness is on his or her own. The same is true at a deposition.”); Armstrong v. Hussmann Corp., 163 F.R.D. 299 (E.D. Mo. 1995) (making order preventing witnesses and clients from having private off-the-record conferences during depositions). But see In re Stratosphere Corp. Secs. Litig., 182 F.R.D. 614 (D. Nev. 1998) (finding no violation in having private conference); Odone v. Croda Int’l PLC, 170 F.R.D. 66 (D.D.C. 1997) (same); Ecker v. Wisconsin Central Ltd., 2008 WL 1777222, at *3 (E.D. Wis. April 16, 2008) (“the mere fact that counsel … conferred with the witness during a break after the [opposition] completed his examination does not warrant sanctions”).
53 Dickerson, supra note 50, at 339.
54 GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa 2008) (noting that witness used the word “fuck” and variants thereof 73 times, but the word “contract” (the basis for the claims) was only used 14 times), Carroll v. The Jaques Admiralty Law Firm P.C., 110 F.3d 290 (5th Cir. 1997) (witness, a lawyer, cursed and threatened questioning lawyer, stating, “He ought to be punched in the god-damn nose”).
55 GMAC, 248 F.R.D. 182.
57 Id. (lawyer repeatedly stormed out of deposition).
58 See, e.g., Eisenberg, 2013 WI 37, ¶¶ 11, 16, 42-44, 347 Wis. 2d 116; GMAC, 248 F.R.D. 182 (sanctioning lawyer for persistent failure to intercede and correct numerous witness violations) (“An attorney faced with a such a client cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down.”).
59 See, e.g., Fed. R. Civ. P. 30(e)(1); Davidson Hotel Co. v. St. Paul Fire & Marine Ins. Co., 136 F. Supp. 2d 901 (W.D. Tenn. 2001); Harden v. Wicomico Cnty., 263 F.R.D. 304 (D. Md. 2009).
60 Holland v. Cedar Creek Min. Inc., 198 F.R.D. 651 (S.D. W. Va. 2001).
61 Compare Reilly v. TXU Corp., 230 F.R.D. 486 (N.D. Tex. 2005) (holding substantive changes permissible but providing that opposing party can inquire about the reasons for the changes, ask follow-up question, and submit application for attorney fees), Rios v. AT&T Corp., 36 F. Supp. 2d 1064 (N.D. Ill. 1999), aff’d, 210 F.3d 375 (7th Cir. 2000) (no limitation on changes that can be made), and Cultvos Yadran S.A. v. Rodriguez, 258 F.R.D. 530 (S.D. Fla. 2009) (same), with Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242, n. 5 (10th Cir. 2002) (substantive changes impermissible), McCarver v. PPG Industries Inc., 243 F.R.D. 668 (N.D. Ala. 2007) (same), and EEOC v. Skanska USA Bldg. Inc., 278 F.R.D. 407 (W.D. Tenn. 2012) (applying “sham affidavit” analysis to errata sheet that changed “yes” to “no” in several answers).
62 Wis. Stat. § 804.05(6) (emphasis added).
63 Fed. R. Civ. P. 32.
64 Wis. Stat. § 804.07(1)(a).
65 Wis. Stat. § 804.07(1)(d).
67 See Malin v. Hospira, No. 13-2433 (7th Cir. Aug. 7, 2014) (criticizing practice of misrepresenting deposition testimony in hopes that courts will not verify accuracy of testimony in record).