On February 28, 2013 I attended a CLE presented by DC Bulla and bar counsel David Clark concerning ethical discovery. I was happy to see some readers there.
I have attached the relevant section of the Ethics in Discovery written materials. DC Bulla’s presentation included quoting from actual deposition transcripts from cases leading to significant penalties for those involved, including one baddie who was featured in not one, but two posts on this blog. Unfortunately, DC Bulla expressly stated to the audience the names and case numbers from the other transcripts would remain anonymous.
There were three points discussed during the CLE I thought were relevant to note here. First, take a deposition as though you were sitting in a courtroom, at trial before a judge and a jury. If this is your frame of reference, it helps to reduce the risk of shenanigans. Second, if you terminate the deposition it is your obligation to file a timely motion for protective order. Third, if your witness takes a break while a question is pending and consults with counsel during that break, the privilege is waived and the witness will be required to answer questions as to what was discussed.
You can heed this advice, or you can be a baddie and become a footnote in the annals of deposition history like the folks in these cases. Ofoedu v. St. Francis Hospital, 234 F.R.D. 26, 35 (D.Conn. 2006) (imposing $750 sanctions on attorney who ignored a previous admonition from the court and repeatedly referred to the deponent as a “farm slave”); Landers v. Kevin Gros Offshore, L.L.C., 2009 U.S. Dist. LEXIS 65480, 2009 WL 2046587 (E.D. La. 2009) (imposing $500 sanction upon an attorney who yelled, interrupted the witness who was being examined, and would not allow that witness to complete the answers to his questions); Amari Co., Inc. v. Burgess, 2009 U.S. Dist. LEXIS 37240, 2009 WL 1269704 (N.D. Ill. 2009) (imposing costs of rescheduled deposition on attorney who, through his objections, clearly indicated to his witness how to answer the questions and at one point claimed “I’m allowed to do whatever I want.”).