Courts and legislatures are showing increasing impatience with overly aggressive defense tactics that thwart legitimate discovery. The GMAC Bank v. HTFC Corporation, No. 06-5291, 2008 U.S. Dist. LEXIS 15878 (E.D. Pa. Fed. 29, 2008) case, decided February 29, 2008, is another decision adding teeth to exhortations that parties, attorneys, and witnesses participating in depositions conduct themselves with civility and decency. In the GMAC Bank case, Judge Eduardo C. Robreno granted the motion to compel the deponent to answer questions under Federal Rule of Civil Procedure 37(a)(3)(B)(i) and sanctioned both the disruptive witness and his indulgent lawyer pursuant to Federal Rule of Civil Procedure 30(d)(2). 

Judge Robreno found that the witness in the GMAC Bank case conducted a three-pronged assault on the deposition proceeding. The witness was hostile, uncivil, and vulgar. To illustrate the extent of the vulgarity, Judge Robreno noted that the witness had used variations of the word "f***" seventy-three times during the course of the deposition; whereas, in this breach of contract case the word "contract" or it's equivalent was only used fourteen times. He also impeded, delayed, and frustrated fair examination by giving purposefully rambling answers and frequently interjecting his own objections and insisting on breaks.

Finally, the witness repeatedly refused to answer questions, and, when he did deign to answer a question, he often provided what the Court described as "intentionally uncooperative and long-winded answers to straightforward questions." The judge found that the witness's misconduct wasted 75 percent of the twelve hour deposition and he awarded fees accordingly.

So what is an attorney representing an out-of-control witness supposed to do? Judge Robreno makes it clear that counsel has an obligation to step in and correct the witness's violations of the rules.  Ineffectual efforts are not enough. And, if counsel cannot bring the witness into line, Judge Robreno suggests adjourning rather than wasting time in an ill-fated attempt to complete the deposition. The record in the GMAC Bank case was particularly strong because the defending attorney not only failed to intercede, but he also contributed to his witness's obstructive behavior by  inappropriately  instructing his witness not to answer, challenging opposing counsel to file a motion to compel, and engaging in offensive conduct of his own. 

Lawyers on both sides of the deposition of a recalcitrant witness are well-advised to remember that judges do not need to make a finding of bad faith to impose sanctions under Rule 30(d)(2). They only need to find that the lawyer's conduct (or, as Judge Robreno makes clear, his inaction) frustrated fair examination of the deponent.

Many lawyers are relying on video to curb misconduct in depositions, but the GMAC Bank case is evidence that video will not always prevent witnesses and defense lawyers from behaving badly. But take heart, even if the presence of a camera does not inhibit obstreperous behavior, the video record can strengthen a motion for sanctions. In the GMAC Bank case the Judge cited the witness's smirks and self congratulatory back-patting and his lawyer's chuckling to support his award of sanctions.  

Lawyers may want to tuck a copy of the GMAC Bank decision in their briefcases. When all else fails it may help to give it to opposing counsel when confronted with an unmanageable witness.

Case Study

Ohio Judicial Council Profiles Judge Markus

Block Awarded The Advocates' Society Medal

Blaze Named Dean of the University of Tennessee College of Law

Lubet Appointed Williams Memorial Professor of Law

Williams to Receive the Margaret Brent Award

Epps Named Dean of Beasley School of Law

Douglass Named Dean of University of Richmond Law School

NITA's Chief Operating Officer, Steve Gibson, (and, thus, the most senior staff member who is not, in fact, a lawyer), has had the privilege to see how the NITA method, with its clear and distinct focus on the participant rather than the faculty member, provides such immediate and lifelong improvement in the skills and confidence of program attendees. Being struck by the paradox of such student-focused learning-namely, that the NITA method is immensely valuable and personally enriching for those few who have been called to service as NITA faculty-Steve decided to share his thoughts on The NITA Blog. Click here to read the rest of Steve's story.

The Docket

Trial Advocacy

NITA's featured program this month is the Northeast Regional Building Trial Skills, one of the most well-attended programs on the NITA calendar every year. Participants flock to the Hofstra University School of Law in Hempstead, New York, from all across the country to join top NITA faculty in this trendsetting program that allows litigators to take their trial skills to the next level.

In the Northeast Regional participants use NITA's learning-by-doing method, engaging in a simulation of necessary courtroom skills, seeing trial demonstrations, and hearing lectures on advocacy from NITA's experienced faculty of trial lawyers, judges, advocacy teachers, and communications experts. Whether you are a recent graduate or a seasoned professional, Building Trial Skills will change the way you approach trials, improving your performance exponentially.

This program is co-directed by Barbara Barron and Lawrence Kessler. Ms. Barron is professor of Legal Writing and Research and Director of Student Advocacy Programs at Hofstra University School of Law, and Mr. Kessler is the Richard J. Cardali Distinguished Professor of Trial Advocacy at Hofstra University School of Law. The program is taking place from August 8-13. Tuition is $2,395 for an unbeatable experience and an estimated 43 CLE credits.

Featured Publication: Modern Trial Advocacy, A Legal Learning Staple

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