Absolutely read The Security National Bank of Sioux City, Iowa vs. Abbott Laboratories, No. C11-4017-MWB (July 28, 2014)("Abbott Laboratories"). It is a memorandum of decision ordering, as a sanction, an attorney to produce a video for his law firm explaining the inappropriate use of deposition objections, coaching, and interruptions.
The Court issued the sanctions sua sponte against defense counsel after he obtained a successful defense verdict in a product liability trial. Sanctions were given based upon the attorney's conduct in two pre-trial depositions. The trial judge (U.S. District Court Judge Mark W. Bennett, Northern District of Iowa) had reviewed the depositions because certain portions sought to be admitted during the trial.
While I am pretty sure that most of us have seen far worse deposition conduct than what is described in Abbott Laboratories, Judge Bennett's thoughtful and thorough memorandum of decision is worth a read to remind us how depositions should occur under the rules of civil procedure.
Here are the major quotes and takeaways from Abbott Laboratories:
- The Problem. "Discovery is mired in obstructionism. . . . Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of the 'just, speedy, and inexpensive determination of every action and proceeding.'" Abbott Laboratories, p. 2.
- Court's Role. "But the litigators and trial lawyers do not deserve all the blame for the obstructionist discovery conduct because judges so often ignore this conduct, and by doing so we reinforce - even incentivize - obstructionist tactics. . . . Unless judges impose serious adverse consequences, like court-imposed sanctions, litigators' conditional reflexes will persist. The point of court-imposed sanctions is to stop reinforcing winning through obstruction." Abbott Laboratories, pp. 3-4.
- "Rule 30(d)(2) provides: '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.'" Abbott Laboratories, p. 7, emphasis added.
- Form Objections. "Lawyers are required, not just permitted, to state the basis for their objections." Merely saying, "object, form" or "I object to the form of the question" is insufficient in Judge Bennett's view because it does not communicate the basis of the objection to provide the examining attorney with an opportunity to cure a valid objection. The Court did note that other jurisdictions prefer the limited "form" objection. See Abbott Laboratories, pp. 16-17 (E.D. La., S.D.N.Y., E.D. Tex., D. Minn.) Abbott Laboratories, p. 15.
- Witness Coaching - "if you know". "When a lawyer tells a witness to answer "if you know," it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question. For this reason, '[i]nstructions to a witness that they may answer a question "if they know" or "if they understand the question" are raw, unmitigated coaching, and are never appropriate." Abbott Laboratories, p. 25.
- Witness Coaching - "speculation" "vague and ambiguous." "Counsel's endless 'vague' and 'form' objections . . . frustrated the free flow of the depositions Counsel defended. They frequently induced witnesses to request clarification to otherwise unambiguous questions." The Court's view is that these objections are only proper where a question is "truly so vague and ambiguous that the defending lawyer cannot possibly discern its subject matter." Abbott Laboratories, pp. 18-23.
- Witness Coaching - "Intermediary" The sanctioned attorney explained that some of his interruptions were made in good faith to help the plaintiff's attorney. The Court rejected this interpretation of the attorney's objections noting that "[i]t is not for the defending lawyer to decide whether the examiner is on the 'wrong track,' nor is it the defending lawyer's prerogative to 'steer [the examiner] to the correct ground.'" Abbott Laboratories, pp. 26-30.
- Excessive Interruptions. The sanctioned attorney's name appeared 381 times in a deposition transcript -- 3 times per page. Abbott Laboratories, pp. 30.
- The Sanction. "Counsel must write and produce a training video in which Counsel, or another partner in Counsel's firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified "form" objections, witness coaching, and excessive interruptions." Abbott Laboratories, pp. 31-33.
What is the practice in your jurisdiction regarding deposition objections? The custom in California where I began my practice was to state the basis of the objection as Judge Bennett now requires in the Northern District of Iowa. Many practitioners in Massachusetts and Rhode Island simply state "objection." What is the better approach?
Will you bring a copy of this decision with you to your next deposition? I might.
Post written by Tom Dunn, member of Division 1 Steering Committee and Co-Editor of The Dispute Resolver Blog. Tom is a partner at Pierce Atwood LLP and he practices construction law and business dispute resolution in Massachusetts and Rhode Island.