New Year’s Resolution: Do Not Be A Deposition Baddie

Welcome to 2014, I hope it is a positive year for you.  One step that could help make it a positive year is to fight the urge to be a deposition baddie.  Why?  Consider MJ Ferenbach’s comments in Dunn v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 157554, 2013 WL 5940099 (D. Nev. Nov. 1, 2013).

The order concerned two 30(b)(6) depositions that went poorly, to say the least.  Both counsel crossed the line, so the blame was shared equally.  “Both depositions elicited inappropriate questions, objections, and remarks from counsel, which the court declines to recount here.”

This particular order resolved this type of motion in a manner I do not typically see.  MJ Ferenbach began his “analysis by (1) reviewing the importance of depositions in modern litigation and (2) the central role that an attorney’s credibility plays in conducting depositions and filing motions and papers with the court. These discussions provide the necessary context for addressing counsels’ alleged behavior and the parties’ motions for sanctions.”  He first noted how only 1.2% of federal cases reach trial.  “This means that the process of fact finding that traditionally occurred at trial before a judge and jury has been displaced by less formal discovery procedures, like dispositions. As a result of the legal system’s widespread reliance on depositions, the way attorneys behave during depositions impacts how justice is administered  in the United States 98.8% of the time.”  Further, pre-trial discovery is explicitly designed to be self-executing without need for court supervision.  “This means that attorneys are immediately bound by operation of law to depose witnesses ‘as they would at trial’ without judicial assistance, oversight, or intervention.”

Sometimes this proves too difficult. See, e.g., Luangisa v. Interface Operations, No. 11–cv–951, 2011 U.S. Dist. LEXIS 139700, 2011 WL 6029880, at *6 (D. Nev. Dec. 5, 2011) (observing that there is a “wealth of case law addressing improper conduct during depositions.”). The cause of the difficulty is often blamed on the fact that attorneys are bound, on the one hand, to zealously represent their clients and required, on the other hand, to conduct themselves as officers of the court. Id.; see also ABA Model Rules of Prof’l Conduct, Preamble (2004). When the inevitable occurs, and two attorneys present differing opinions regarding the propriety of a deposition tactic, some attorneys mistakenly elevate their duty to zealously represent their clients above their duty to conduct themselves as officers of the court. Proceedings, then, devolve, personal attacks ensue, and—as here—a web of finger pointing results. (See generally, e.g., Def.’s Mot. (#37) at Exhibit A, Depo. of Jarrod Brademan).

When the court is enlisted to resolve the dispute, motion practice may exacerbate the problem. If, as here, the mistake continues and the attorney drafts briefs as a zealous advocate, and not an officer of the court, the judge is presented with motions and papers that are laced with jabs and ad hominem attacks. See, e.g., Luangisa, 2011 U.S. Dist. LEXIS 139700, 2011 WL 6029880, at *6 (noting a similar problem); (see also Def.’s Mot. (#37) at 8:14-15 (“Plaintiff’s counsel started the deposition . . . by exhibiting child-like behavior, including eye-rolling, laughing at the witness’ answers, and scoffing.”).

The court’s duty to examine the record is, then, clouded by two layers of nonsense. The first layer is the parties’ motions and papers, which purport to objectively analyze violations of law (i.e., the Federal Rules of Civil Procedure) that allegedly occurred during the deposition. The second layer is the deposition transcript itself, which contains inappropriate conduct. These layers impede Rule 1’s command “to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1. This problem can be cured in one of two ways.

The court, in turn, is presented with a choice. It may admonish the parties, impose sanctions, and hope the problem disappears. Alternatively, the court may offer instruction and attempt to address the root of the problem at hand.

MJ Ferenbach nobly attempted to address the root problem. In doing so, he concluded the parties’ competing motions for sanctions, and the counsel who filed them, lacked credibility.

The court chooses the latter option, beginning clarifying counsel’s role as both a zealous advocate and an officer of the court. The point of the discussion is to instruct counsel for their own benefit, and not to embarrass or admonish the parties present.

The Rules of Professional Conduct require attorneys to be both zealous advocates and officers of the court. See, e.g., ABA Model Rules of Prof’l Conduct Preamble (2004). Attorneys sometimes view these roles as opposed. This is a mistake. An attorney’s backbone is her credibility. Good attorneys are credible attorneys because they simultaneously advocate their client’s interests with zeal while presenting arguments as an officer of the court who respects rules of law and decorum. When, however, an attorney elevates her duty to zealously represent her client above her duty to conduct herself as an officer of the court, her credibility suffers. A zealous advocate who disregards her role as an officer of the court becomes unreliable and prone to making exaggerated arguments, which the court regards with skepticism. When this happens, the client’s case weakens. If this continues, a meritorious case may become a compromised case. The result is clear. An attorney’s desire to zealously represent her client can undermine the attorney’s ability to effectively represent her client.

In the motions before the court, both sides have presented presumptively meritorious arguments. The credibility of these arguments, however, is tainted because counsel mistakenly prioritize zealous representation over counsels’ duty to conduct themselves as officers of the court. For example, Defense counsel’s motion alleges that Plaintiff’s counsel “started the deposition . . . by exhibiting child-like behavior, including eye-rolling, laughing at the witness’ answers, and scoffing.” (Def.’s Mot. (#37) at 8:14-15). These allegations can only be regarded with skepticism because the deposition transcripts did not—and could not have—captured eye-rolling, laughing, or scoffing.

The order noted conduct from both counsel that was inappropriate but declined to impose sanctions. First, going to counsel’s lack of credibility, “[t]he court cannot determine which party’s arguments should prevail because the parties’ attorneys have frustrated the court’s review.”

Second, the court will not impose sanctions because neither party has satisfied its burden. To paraphrase the Supreme Court, the imposition of sanctions requires more than an unadorned opposing-counsel-unlawfully-harmed-me accusation. This, however, is essentially what the parties have offered. For instance, Defense counsel’s motion complains that Plaintiff’s counsel asked the same question twenty-five times. To support this claim, she cites various points in the deposition. Defense counsel, however, does not provide the court with sufficient background information regarding Plaintiff’s counsel’s questions or Wal-Mart’s policies to understand how a question regarding a cashier’s inspection is identical to a question regarding Wal-Mart’s “Customer Accident Investigation & Reporting Procedures” or a question regarding Wal-Mart’s “MAPMs.” The court will not sift through 350 pages of two depositions to answer this question. See Nw. Nat’l Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir. 1994) (“District judges are not archaeologists. They need not excavate masses of papers in search of revealing tidbits.”).

The imposition of sanctions requires more. Under Rule 30(d)(2), the moving party’s burden is twofold. First, the movant must identify language or behavior that impeded, delayed, or frustrated the fair examination of the deponent. When making this inquiry, the court will look to: (1) the specific language used (e.g., use of offensive words or inappropriate tones); the conduct of the parties (e.g., excessive objections or speaking objections); and (3) the length of the deposition. Second, the movant must identify “an appropriate sanction.”

(all citations but one omitted).

Third, neither party met the analytical burden for the relief sought. MJ Ferenbach consequently left the parties as he found them: mired in their own mess.

Neither party has satisfied this burden. Defense counsel moves the court to strike both depositions in their entirety. This is overbroad and not proportional or narrowly tailored. By contrast, Plaintiff’s counsel moves the court to impose sanctions without requesting any specific sanction whatsoever. As a result, Plaintiff’s counsel has failed to identify proportional or narrowly tailored sanctions.

This order was notable to me for several points. First, it clearly stated the legal rubric that must be satisfied for discovery related motions. Second, it spelled out the attorney’s role as simultaneously an advocate and officer of the court while noting the inherent conflict some believe this creates. Third, and perhaps most poignant to me, the order came right out and said counsel had lost credibility as a result of their conduct. When that happens, sophisticated clients often 1) check to see if time remains to file a jury demand; 2) show current counsel the door; and 3) look for a knight in shining armor to salvage the case. If a junior attorney creates this problem, he may have other problems to consider. My point is that a lawyer’s credibility is paramount and should be zealously protected. If you lose credibility with a judge in one case, be assured the judge will remember it next time.

There, a new year’s resolution that you can keep.