A U.S. Magistrate Judge found that the following types of deposition conduct by counsel was unusual or unprofessional and assessed sanctions accordingly:
The vast majority of objections made by Plaintiff's counsel during these depositions did not relate to the privilege issues described above. These objections were based on often ersatz “form” objections, and the following: compound, asked and answered, overbroad, trade secrets, privacy, speculation, lack of foundation, argumentative, “untrue,” misstates the testimony, “I don't know what that means,” vague, ambiguous, out of context, assumes facts not in evidence, the document speaks for itself, misstates the document, improper or incomplete hypothetical, legal conclusion, improper hypothetical, calls for expert opinion. Outright coaching occurred (e.g., “It's a ‘yes' or ‘no’.” “Do you know that or are you assuming?” “Are you making an assumption now or are you assuming?” “If you're not sure or you don't know, just say so.” “That's a new question.” Answer “if you know.”). Simple harassment of the questioner also occurred (e.g., “Let's move on.” “Next question.” “What are you talking about?” “Bad question.” “Ask a good question.”). Objections were frequently launched in meaningless salvos.
Plaintiff's counsel repeatedly instructed the witnesses not the answer without an objection based on privilege, usually based on objections that a question had been asked and answered, but also based on questions counsel considered unclear or that lacked foundation. He provided answers before the witness responded, essentially testifying. (See e.g., Andorian, H. deposition, Doc. 354, sealed, at 120.) The witnesses were frequently confused and often changed or amended answers after objections. The attorneys seemed to spend as much time arguing over objections as examining the witness. When examining counsel complained, Plaintiff's counsel claimed he was just “doing his job.” The Court disagrees.
AKH Company, Inc. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2016 WL 141629, at *3 (D. Kan. January 12, 2016) (Gale, U.S.M.J.).
I do not know this Magistrate Judge's background or previous practice area, of course. But I have seen the conduct described in the above quotation so much that it actually seems to be the standard practice of law in litigation. It is the standard practice of law for many lawyers in litigation, there can be no real doubt.
Perhaps the unusual feature of this decision to assess sanctions for such conduct is that the Court assessed sanctions. Perhaps if they did assess sanctions more often for such conduct now, they would not have to assess as many sanctions for such conduct in future cases.
P.S. regarding secrecy mania of Courts, parties and lawyers:
Did you notice this 'citation' in the above quote:
(See e.g., Andorian, H. deposition, Doc. 354, sealed, at 120.)
If the deposition is secret and "sealed," as the Court says, then how is anybody supposed to "see" it, e.g.?
Please Read The Disclaimer. ©2016 by Dennis J. Wall. All rights reserved.
Comments