Pay attention to the rules when defending depositions

When it comes to deposition conduct, too many attorneys play fast and loose with the rules.

When defending their client at a deposition, attorneys may feel the need to protect their client by improperly coaching them through the deposition. In other instances, attorneys may feel the need to “put on a show” for their client by demonstrating their supposed tenacity in challenging opposing counsel. However, for attorneys who engage in such conduct, the deposition transcript can be unforgiving. When improper deposition conduct is brought to the court’s attention, courts have not hesitated to impose severe sanctions on attorneys.

For example, in Lucas v. Breg, Inc., the U.S. District Court for the Southern District of California sanctioned an attorney for statements to opposing counsel during a deposition such as “shame on you,” “you know, someone apparently didn’t fill you in on who you’re dealing with here,” and “it appears you might be hallucinating by positing the possibility that the defendants are going to win this lawsuit.” 3:15-CV-00258-BAS-NLS (S.D. Cal. May 13, 2016). In another case, the U.S. District Court for the Northern District of California imposed sanctions on an attorney who had “engaged in lengthy, argumentative speaking objections and, at least once, gave a speech impugning the conduct of other attorneys.” Uschold v. Carriage Services, Inc., 17-cv-04424-JSW (EDL). (N.D. Cal. March 15, 2019). The court held that those actions “violate[d] the Federal Rules of Civil Procedure, the Northern District of California’s Guidelines for Professional Conduct, and the presiding judge’s standing order on depositions which expressly prohibits “[s]peaking objections or those calculated to coach the deponent.”

In both Lucas and Uschold, the courts found it appropriate to impose monetary sanctions on the attorneys. However, courts may impose even more severe sanctions, such as by referring the matter to the state bar where the court believes that the attorney violated her or his ethical obligations. Below are some tips for attorneys to avoid unnecessary risk when defending depositions.

Handle the Truth

Some attorneys engage in deposition misconduct before the witness is even sworn in to testify. Most attorneys would agree that preparing a witness for her or his deposition is crucial. However, as part of that process, there may be attorneys who have little regard for the restrictions on coaching witnesses and instead assist the witnesses in fabricating testimony or by implicitly suggesting that the client should withhold certain information responsive to questions from opposing counsel.

Attorneys who engage in such conduct risk violating their duty of candor under the ethical rules. In particular, Rule 3.3 of the California Rules of Professional Conduct provides that a “lawyer shall not … offer evidence that the lawyer knows to be false.” Moreover, “[i]f a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal,” unless disclosure would violate the lawyer’s duty to maintain confidentiality. The comments further specify that Rule 3.3 applies in ancillary proceedings, such as a deposition.

The rules thus make clear that attorneys are not free to fashion their client’s deposition testimony as they see fit. Instead, there is a clear distinction between preparing a client for a deposition and advising the client to answer questions in a way that is less than truthful.

Mid-Deposition Conferences

Another common issue is so-called “speaking objections,” where the attorney attempts to guide the client to a proper response through the phrasing of an objection. However, some attorneys go further and seek to confer with the client in the middle of a deposition.

Courts around the country differ as to the propriety of such conferences. In California, at least two federal courts have held that “[a] witness being deposed may not confer with his counsel during a deposition unless the conference is for the purpose of determining whether an applicable privilege should be asserted.” Horowitz v. Chen, SACV1700432AGDFMX (C.D. Cal. Sept. 20, 2018); see also BNSF Ry. Co. v. San Joaquin Valley R. Co., 1:08-CV-01086-AWI-SM (E.D. Cal. Nov. 17, 2009) (same holding).

Some jurisdictions follow a less strict approach, prohibiting conferences only when a question is pending. Attorneys also may be permitted to talk to their client during breaks in the deposition not requested by the deponent or the deponent’s counsel. See, e.g., BNSF (observing that courts have held “that although counsel may not demand a break in questioning or a conference between questions and answers, an attorney and client may confer during a recess that has not been so requested”).

Know the Rules

Regardless of how many depositions an attorney may have taken or defended, it is always helpful to review the relevant rules governing deposition scope, nature of objections, and related motions in each jurisdiction. The decision in Uschold was indeed based on the attorney’s violation of rules from three separate sources: The Federal Rules of Civil Procedure, the Northern District of California’s Guidelines for Professional Conduct, and the presiding judge’s standing order on depositions. Attorneys are thus well-served by identifying all of the relevant rules in order to avoid unknowingly crossing the line.

Even with knowledge of the rules, attorneys can sometimes let their emotions get the best of them in the heat of a deposition. The best rule of thumb in depositions is to approach the rules and the deposition itself as if the proceeding were taking place in court before the judge. Judges may in fact be watching attorneys when it comes to improper deposition conduct. 