Ethical Quicksand In Employment Depositions

Transcription

1 Ethical Quicksand In Employment Depositions Richard S. Amador Introduction Many of the best lawyers use aggressive styles of litigation, but far too many lawyers confuse vigorous advocacy with misconduct that subverts the litigation process. This brief article focuses on depositions in employment cases and how many commonly used tactics in taking and defending depositions can cross ethical lines. Depositions are key events in every employment case, and attorneys must walk the fine line between vigorous representation and conduct that can put them and their clients at risk. Ethical pitfalls exist even for well-intentioned and diligent attorneys. The article is intended to address areas where counsel commonly overstep ethical boundaries, discussing the consequences of such tactics both to counsel and clients. The discussion is not directed at either plaintiff s or employer s counsel, but to employment practitioners generally. Most of the cited cases involve employment lawsuits in Federal Court, but other types of cases are included where instructive. Defending Depositions Counsel May Be Held Responsible for Witness Misconduct Few employment lawyers would consider defending a deposition without thoroughly preparing the witness, or sitting passively while their client is mercilessly grilled by opposing counsel. But allowing a witness to run amok can have severe consequences. Attorneys must monitor their clients conduct as well as their own, and failing to rein in a witness who is acting uncivilly carries its own risk. In GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa 2008), sanctions were imposed where (by the court s reckoning) approximately 75% of the deposition was wasted because of the defendant deponent s evasive and non-responsive answers, refusal to answer, use of hostile and vulgar language, and repeated self-initiated breaks. For example, the deponent, who was the CEO of the defendant company, used the F-word no less than 73 times in his responses, whereas the word contract was used only 14 times Richard S. Amador

2 in this action for breach of commercial contract. Id. The defendant also argued with deposing counsel and interposed his own objections, rather than allowing his counsel to do so for him. Id. For his part, defendant s counsel sat idly by as a mere spectator to [defendant s] abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in [defendant s] conduct]. Id. The court ordered nearly $30,000 in sanctions, plus re-taking of the deposition at the courthouse in the presence of a magistrate judge. Id. Although most of the affirmative misconduct was by the witness, counsel was held jointly and severally liable for the sanctions. No Matter How Commonplace, Coaching Is Improper It may be tempting to guide a witness into giving the best testimony for your case during a deposition. But deposition coaching can cross the line, and many courts have proved willing to sanction such conduct. The seminal case cracking down on deposition coaching is Hall v. Clifton Precision, 150 F.R.D. 525, 530 (E.D. Pa. 1993). Hall not only prohibits spurious objections, speaking objections and coaching during deposition questioning, but also any coaching during recesses in the deposition. Some courts agree with Hall. See, Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527 (M.D. Pa. 2002) (defense counsel acted improperly under Hall by improperly instructing witnesses not to answer and walking out with a question pending; the court allowed plaintiff to re-depose the witnesses at issue), Damaj v. Farmers Ins. Co., 164 F.R.D. 559 (N.D. Okla. 1995) (deponent s attorney may not object in a manner that suggests the desired answer to the deponent and may not confer with the deponent regarding documents presented to the deponent at the deposition). Many courts, however, do not agree with the scope of Hall s restrictions. See, e.g., Birdine v. City of Coatesville, 255 F.R.D. 157 (E.D. Pa. 2004) (Hall goes too far in forbidding an attorney defending a deposition from making most objections and instructing a witness not to answer objectionable questions); Stratosphere Corp. Sec. Litig., 182 F.R.D. 614 (D. Nev. 1998) ( Hall goes too far in its solution. ); McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D. Colo. 2001) (plaintiffs not entitled to protective Richard S. Amador

3 order which would have had the effect of barring defendant from conferring with his counsel for the entire period between sessions of his deposition). Although this issue is not entirely settled, nearly all courts agree that coaching on the record and especially with a question pending, is improper. A safer bet is to take a break between questions to discuss any issues that arise. In Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., 201 F.R.D. 33 (D. Mass. 2001) counsel for deponents conferred with deponents while questions were pending, instructed deponents not to finish answers, suggested how they should answer questions, made instructions not to answer on grounds other than privilege, objected asked and answered grounds 81 times, engaged in lengthy colloquies on the record, and made ad hominem attacks against opposing counsel. The court rebuked counsel for his misbehavior, and warned that further misconduct would result in monetary sanctions. Id. Unprofessional Behavior Is Also Unethical And Subject to Sanction As one might expect, unprofessional banter and snide commentary also can result in sanctions. In one particularly egregious case, the court labeled an attorney s behavior as Rambo Litigation. Van Plisum v. Iowa State Univ. of Sci. Tech., 152 F.R.D. 179 (S.D. Iowa 1993). In this wrongful termination action, the plaintiff s attorney repeatedly took it upon himself to restate defendant s counsel s questions, interposed objections which were thinly veiled instructions to the witness, who would then incorporate her attorney s language into her answer. Id. To make matters worse, plaintiff s counsel engaged in ad hominem attacks on [opposing counsel s] ethics, litigation experience, and honesty. Id. So much deposition time was wasted that thirty percent of the transcript consisted of discussion, argument, bickering, haranguing, and general interference by plaintiff s counsel, and responses by defendant s counsel. Id. The court sanctioned plaintiff s counsel half the cost of the deposition, as well as the cost of assigning a discovery master to the case. Id. The court also ordered that all subsequent depositions take place in the federal courthouse. Id. Similarly, in Am. Directory Serv. Agency, Inc. v. Beam, 131 F.R.D. 15 (D.D.C. 1990), an attorney defending a deposition was sanctioned for coaching his clients and Richard S. Amador

4 instructing them not to answer at all. The attorney also made repeated objections and vexatious requests for clarification, including an objection to the word customer, and lengthy arguments with deposing counsel. Id. For this conduct, the court required counsel to personally pay the reasonable expenses and attorneys fees of his opponent in connection with the deposition and resulting motion for sanctions. Id. In Stengel v. Kawasaki Heavy Indus., 116 F.R.D. 263, (N.D. Tex 1987), counsel for defendant made disparaging quips throughout the deposition, such as counsel, either you are not listening to the witness or you are trying to badger him, I don t know which it is. To make matters worse, in the presence of the court reporter, two attorneys for the defendants talked about their intention to jerk plaintiff s counsel around. Id. The court awarded $5,825 in sanctions for this and other discovery-related misconduct. Id. Duty to Educate Corporate Representatives Employment defense attorneys are routinely asked to deliver a corporate representative to give deposition testimony on behalf of the employer under Rule 30(b)6 of the Federal Rules of Civil Procedure or its state equivalent. This task can be far more difficult than it might sound because deposition notices for corporate witnesses often specify a laundry list of expansive topics, many of which involve events that occurred years prior. Failing to produce an adequate corporate representative for deposition in response to one of these notices can lead to trouble for a corporate client. The corporate witness must be able to testify fully with regard to the matters designated in the deposition notice. See, Maldonado v. Superior Court, 94 Cal. App. 4 th 1390 (2002). If the notice designates a topic about which no one current employee is knowledgeable, the corporation (and its attorney) must educate a designated witness by preparing him or her to answer questions on that topic. See, Sony Electronics, Inc. v. Soundview Technologies, Inc. 217 F.R.D 104 (D. Ct. 2002). Personal knowledge of the designated subject matter by the deponent is not necessary. See, Sprint Communications v. The Globe.com, 236 F.R.D. 524 (D. Kansas 2006). If it becomes obvious that the designated deponent is deficient, the corporation must provide a substitute deponent. Id Richard S. Amador

5 The burden of determining who the organizational deponent should be rests on the attorney for the corporation and, thus, an attorney cannot shift the burden of determining who should be deposed by asking opposing counsel to identify a specific person. See, Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F. 3d 1 (1 st Cir. 2000). If there is absolutely no one the corporation can designate, the proper course of action is to move for a protective order. See, United States v. Kordel, 397 U.S. 1 (1970). Unfortunately, failure to produce an appropriately knowledgeable witness can expose the corporation to serious risk. Sanctions can include reimbursement of deposition costs and attorneys fees. See, United States v. Taylor, 166 F.R.D. 356 (MD NC 1996). At the very least, the court may require the party to re-designate its witnesses and require that they be prepared for another deposition, at the corporation s expense. See, Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., 201 F.R.D. 33 (D. Mass. 2001) Taking Depositions Abusive Deposition-Taking Counsel can also run into ethical trouble while taking a deposition, not just defending one. Being abusive toward a witness at deposition, even an evasive and nonresponsive one, can subject a deposing attorney to sanctions as well as public flogging by the court. In Freeman v. Schointuck, 192 F.R.D. 187 (D. Md. 2000), plaintiff s expert had been ordered to sit for a second day of deposition after giving evasive and nonresponsive answers in the first session. At the court-ordered second session, defense counsel apparently felt he therefore had license to subject the witness and plaintiff s counsel to a wide array of unprofessional behavior, accusing the deponent of playing games, demeaning her professional competence, mimicking plaintiff s counsel and responding yeah, yeah, yeah to an objection. On defendant s motion to preclude the witness from testifying at trial, the court denied the motion and (apparently sua sponte) imposed monetary sanctions, ordered defense counsel to apologize in writing to the deponent and plaintiff s counsel, reversed a prior order that plaintiff pay defense Richard S. Amador

6 counsel s fees for the deposition, and required defense counsel to take a professionalism course. Wrong Responses To Deposition Misconduct A challenge confronted by many lawyers is in determining how to respond to an abusive lawyer on the other side of the deposition table. Suspending a deposition too soon can result in sanctions in itself, letting such misconduct occur only encourages it, and wading into the muck is almost certain to backfire. A non-employment case demonstrates the ethical ramifications a lawyer attempted to find a middle ground by protecting his clients with instructions not to answer, rather than seeking court relief. In Redwood v. Dobson, 476 F.3d 462 (7 th Cir 2007), deposing counsel asked several series of questions that appeared designed to harass the witness and without any apparent likelihood that they would lead to discoverable evidence. Id. Among the most egregious was asking the deponent if he had ever been ordered to obtain psychiatric counseling, and if he was a homosexual or involved in any type of homosexual clique with any other defendants in this action. Id. Calling such conduct shameful, the Seventh Circuit declined to impose monetary sanctions but censured deposing counsel for conduct unbecoming a member of the bar. Id. What is most notable about the Redwood decision, however, is that counsel defending the deposition was also admonished for repeatedly instructing the witness not to answer the questions rather than suspending the deposition to seek a protective order. Id. Stray Documents Can Lead to Trouble Attorneys often leave notes, marked up documents or open laptops on the table during a deposition recess. Common sense might dictate that it is improper to look at or copy those documents because they likely contain attorney work product, but that does not mean it never happens. In Rico v. Mitsubishi Motors Corp., 42 Cal. 4 th 807 (Cal. 2007), plaintiff s attorney in a products case obtained a defense strategy summary recording counsel s analysis of the strengths and weaknesses of the case when defense counsel left the material unattended in a conference room at a break in a document Richard S. Amador

7 intensive deposition, where paper was scattered on the conference table. The trial court found that the plaintiff s attorney obtained the document through inadvertence due to the voluminous documents on the table. Id. The document was not marked privileged or confidential, so plaintiff s counsel made a copy, shared it with his experts and co-counsel and then used it to cross examine the defense expert. Id. The trial court found the document was absolute work product and that plaintiff s counsel acted unethically in using the material. Id. An order disqualifying plaintiff s counsel and experts was upheld on appeal and by the California Supreme Court. Id. Richard S. Amador is a partner with Sanchez & Amador, LLP, in Los Angeles, California. He represents major corporate employers in single plaintiff employment litigation. Stephanie A. Collins, senior counsel with Sanchez & Amador, provided substantial assistance in the preparation of this article Richard S. Amador