Law Offices of Lawrence J. Sherman, LLC
Law Offices of Lawrence J. Sherman, LLC
Lawrence J. Sherman, Esq.
Washington, D.C. and Maryland Labor and Employment Lawyer
Maryland Office and Fax: (301) 656-1068
Washington, D.C. Office: (202) 785-0384
5505 Connecticut Avenue, NW #261, Washington, D.C. 20012
Washington, D.C. & Maryland Labor and Employment Attorney
Preparing for, Taking and Defending Depositions in an Effective Manner
There are no express ethical rules that govern preparing for, taking or defending depositions. While many rules touch upon these matters, they often give conflicting signals. For example, Rule 1.3, comment 3 of the Code of Professional Responsibility requires that a "lawyer should represent a client zealously within the bounds of the law. In contrast, Rules 3.3 and 3.4 respectively caution that a lawyer should exhibit candor towards the tribunal and fairness to the opposing party and counsel.1
Ethical concerns commonly arise in the context of fulfilling client expectations that prize zealous representation as well as by a need to counter equally zealous or even outrageous conduct by opposing counsel who is ostensibly acting in his or her client's interest. In these situations, therefore, it may be necessary for the employment to take into account applicable ethical and judicial standards and tailor his or her conduct accordingly.
Discovery is supposed to enable the opposing parties to assist the court in adjudicating the merit of a dispute by disclosing the facts necessary for the court or jury to make an informed decision. The underlying purpose of a deposition, in turn, is to find out what a witness saw, heard, or did, along with what the witness thinks or believes when fact and opinion are commingled as is commonly the case. A deposition is meant to be question-and-answer conversation between the deposing lawyer and the witness giving testimony.
There is consequently no reason for the witness's own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness is instead expected to come to the deposition to testify and not to recite a scripted version of the facts after having been coached on what to recall or say. In other words, the witness -- and not the lawyer -- is supposed to provide responsive answers.
The lawyer has a right, if not a duty, to prepare the client or a key witness for a deposition. Under Rule 30(c), depositions generally are to be conducted under the same testimonial rules as trials. For this reason, among others, the witness and lawyer are not permitted to confer during a witness's testimony. Once a witness has been prepared and has taken the stand, that witness is on his or her own with limited exceptions.
The same is true at a deposition. The fact that there is no judge in the room to prevent private conferences does not mean that such conferences should or may occur. The underlying reason for preventing private conferences is still present - namely, to avoid obstructing or giving the appearance of obstructing the truth. There is, of course, an exception if and when questions of privilege or work product necessitate a conference for this limited purpose.
Set forth below is a non-exhaustive list of ethically based duties. These duties exemplify the trend away from hardball deposition tactics and should always be considered during preparation as well as taking and defending depositions. Adherence to these duties will not make a competent and ethical attorney any less effective, but will make interactions before, during and after depositions less adversarial and usually more productive. Reciprocal adherence to these standards may even allow both sides to gain access to needed factual information and opinion without rancor and/or a plethora of sanctions motions or other collateral disputes.
The Basic Ethical Duties of an Attorney Taking a Deposition
1.A duty to adequately prepare.2
2.A duty not to prolong a deposition unnecessarily and to adhere to time limits set on the duration of depositions by statute, rule or court order.3
3.A duty to take depositions only where actually needed to ascertain facts or information or to perpetuate testimony. Depositions should never be used as a means or harassment or generating expense.4
4.If taking a deposition by videotape or other mechanical means, a duty to not to distort the appearance or demeanor of deponents or attorneys through camera or sound-recording techniques.5
5.A duty to refrain from conducting an examination in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses a deponent or a party.6
6.A duty to respect the deponent and not inquire unnecessarily into a deponent's private and personal affairs or question a deponent's integrity where such is irrelevant to the subject matter.7
7.A duty to avoid questions which are unduly unfair or burdensome to a lay person because they call upon a lay person to sort out factual material according to specific legal contentions.8
8.A duty to avoid unnecessary colloquy on or off the record, including ad homonym attacks, bickering, haranguing or other forms of "discussion" with opposing counsel.9
9.A duty to meet and confer with opposing counsel to attempt informal resolution of deposition and discovery disputes.10
10.A duty to seek an appropriate protective order when matters cannot be resolved informally.11
11.A general duty to conduct depositions as if in the presence of a judge or maintaining their responsibilities as judicial officer. 12
The Basic Ethical Duties of an Attorney Defending a Deposition
The duties of an attorney defending and taking a deposition overlap to a large extent. However, the duties of the defender are considerably more complex and more extensive than those of the taker. These duties include:
1.A duty to prepare the witness in a non-coaching, non-suggestive manner.13
2.A duty to avoid conflicts of interest or to make appropriate disclosures and obtainappropriate waivers when representing witnesses "for purposes of the deposition only."14
3.In dealing with unrepresented witnesses, a duty not to state or imply that the lawyer is disinterested and to correct any misunderstanding about the lawyer's role in the matter. 15
4.A duty to avoid interviewing witnesses represented by counsel without the permission of their counsel. In the case of an organization, this duty included communications concerning the matter in representation with persons having a managerial responsibility on behalf of the organization. This duty may also include contacts with any other person whose act or omission in connection with that matter may be imputed to the organizations for purposes of civil or criminal liability, or whose statement may constitute an admission on the part of the organization.16
5.A duty to seek in advance, or as promptly as possible, any protective orders which may be necessary to limit the scope of the deposition, protect a deponent's trade secrets or other private information, or to protect a witness from harassment.17
6.A duty not to prolong a deposition unnecessarily and to adhere to time limits set on the duration of depositions by statute, rule or court order.18
7.A duty to produce unprivileged documents if specified in the deposition notice or an accompanying subpoena.19
8.A duty to produce documents used to refresh the witness's recollection in preparation for the deposition.20
9.A concomitant duty to prepare witnesses for deposition in such a way as to minimize the risk of a required disclosure of work product or attorney client material.21
10.A duty to make well-founded objections as to the form of a question in order to afford opposing counsel a fair opportunity to correct the form of the question and to preserve the objection for trial.22
11.A duty to make objections in a concise manner and to refrain from coaching or making suggestive objections.23
12.A duty to refrain from instructing a witness not to answer except on grounds of privilege, manifest irrelevance, or to prevent harassment.24
13.A duty to refrain from unnecessary conferences with the witness during the deposition, except for purposes of ascertaining whether to assert a claim of privilege.25
14.A duty to identify clearly the nature of any claim or privilege asserted at a deposition and, if requested, to provide information sufficient to identify the privileged document or communication to allow opposing counsel to seek an order compelling the disclosure of the information including, for documents, (1) the type of document, e.g., letter or memorandum, (2) general subject matter of the document, (3) date, author, addressee and other recipients of the document; and for oral communications, (1) the name of the person making the communication and the names of persons present while the communication was made, (2) date and place of communication, (3) general subject matter of the communication.26
15.After asserting a privilege, a duty to allow the attorney seeking disclosure reasonable latitude during the deposition to question the witness to establish other relevant information concerning the applicability of the privilege, and any circumstances which may constitute an exception to or waiver of the privilege.27
16.A duty to refrain from colloquy or self-serving speeches, as well as ad hominem attacks on opposing counsel.28
17.A duty to meet and confer with opposing counsel to attempt informal resolution of deposition and discovery disputes.29
18.A duty to seek an appropriate protective order when matters cannot be resolved informally.30
19.A general duty to conduct oneself in a deposition as if it were being conducted in the presence of a judge or other judicial officer.31
20.A duty to insure that any changes to a deposition transcript of the witness's testimony be made by the witness himself and that the original answers remain in the record to be used for impeachment purposes. 32
21.An overriding duty of candor to the court which includes a duty to take prompt remedial action if the attorney knows that a witness or client has committed perjury in a deposition. 33
Duties of the Deponent
These duties can be deduced from the rules and case law discussed above. They can also be 6deduced from cases in which the trial court has levied sanctions against both party and non-party deponents. The following duties would appear to apply:
1.A duty to appear at a properly noticed deposition in the absence of a stipulation or protective order canceling, delaying or rescheduling the deposition. 34
2.A duty to answer truthfully and completely questions properly posed at a deposition. 35
Special Problems Involving the Preparation of Clients and Other Witnesses
1. Over-educated or frightened witnesses who demand a script or detailed preview of the deposition. These witnesses want to the lawyer to go over every conceivable type of anticipated question as well as to discuss their anticipated answer to each such question.
a) Counseling about subject areas, techniques for answering questions, matters of privilege and witness demeanor are necessary and appropriate. Discussing the hard questions that are likely to be asked and/or the weaknesses in the client's case are also appropriate, but should be carefully done because they invite potential ethical and practice problems.
b) Preparing the witness to answer the inevitable summary judgment questions - namely, describe each and every fact that supports your claim for [sex discrimination/sexual harassment/age discrimination, etc.] is necessary and appropriate. The key is to avoid scripting the answer. It is also important for the client to understand and saying in answering that his or her understanding of the claim and the supporting facts is not all-inclusive. The same words of caution apply to killer relief questions, such as describe the nature and extent of the losses in compensation and benefits that you claim to have incurred or describe all non-economic losses and injuries that you claim to have suffered.
2. Requests by the client or a witness for coaching during the deposition should be discouraged, but only after explaining to the witness the role that the attorney will play in protecting the record, avoiding disclosure of privilege, etc.
3. The concept and practical application of applicable privileges must be addressed in preparation. The client must understand his or her right to confer with counsel regarding this matter and this matter alone, along with the activist role that the attorney will play in this limited area.
4. The key documents in the case must be reviewed and the client warned that he or she is likely to be quizzed on their content. Care should be taken to avoid showing the client or witness any document that has not been produced or is subject to an absolute or qualified privilege. The client/witness should also be cautioned not to review or refer to any other documents on his or her own and told exactly why doing so is risky business.
5. An explanation, plus standardized material, should be provided to the client about all aspects of the deposition process.
The ethical considerations discussed in the papershould be fairly obvious on reflection. In reality, true ethical issues do not abound in deposition practice and, particularly, with regard to witness preparation. When the attorney is taking a deposition, the key is to engage the witness in a free-flowing and meaningful dialogue, using whatever techniques foster communication with the witness. When defending a deposition, the key is preparation. In addition to assuring basic familiarity with the subject matter of the deposition, the attorney should make as sure as possible that the client/witness refrains from trying to convince the opposing counsel of the merit of his or her case or position. Witnesses should be encouraged to be direct, succinct and responsive, but not to fence with opposing counsel or to volunteer any information (even verbal zingers).
In the final analysis, having a working command of the rules of civil procedure and evidence, along with knowing intimately the push points of the case, provide the best insurance against being caught up in ethical finger pointing or worse. Most important of all, of course, is being well prepared. This always includes anticipating potential discovery, evidentiary and ethical disputes that may arise during the deposition and channeling the dispute to areas in which the lawyer is on solid footing.36
If you have questions or concerns regarding Labor, Employment, or Civil Rights Law, contact us today for a consultation. Our law firm serves clients in the District of Columbia, Maryland and nationwide.
Lawrence J. Sherman, Esq.
5505 Connecticut Ave, N.W. #261
Washington, DC 20012-2601
(202) 785-0384 (Office Telephone)
(301) 656-1068 (Fax)
In the interest of simplicity, I will refer to the Rules of Professional Responsibility for the American Bar Association, District of Columbia and Maryland only. In the event that there are any significant variations in Virginia, I will count on my colleagues from the Commonwealth of Virginia to bring these matters to the attention of interested practitioners.
2Model Rules of Professional Conduct Rule 1.1 cmt. 5 (1981); MD Rules of Professional Conduct Rule 1.1 cmt. [Thoroughness and Preparation] (1999). D.C. Rules of Professional Conduct Rule 1.1 cmt. 5.
3Fed. R. Civ. P. 30(d)(2) authorizes a district court to impose appropriate time limits by local rule or court order; Md. R. 2-401 (b) (1984); Md. Discovery Guidelines Guideline 2; D.C. D. Ct. R. 207 (b), (c); D.C. R. 26 (d).
4West's Cal. Rules of Court. L.A. County Super. Ct. R. 7-12(e)(1); See e.g., D.C. R. 26 (b) (Depositions are limited to non-privileged relevant matters); Md. R. 2-402 (a) (limited to relevant non-privileged matters).
5Fed. R. Civ. P. 30(b)(4); Md. R. 2-416 (e); D.C. R. 30 (d) (3) (court has authority order the deposition to cease or to be limited in scope and manner due to distortion techniques).
6Fed. R. Civ. P. 30(d)(3); Md. Discovery Guidelines Guideline 8 (d) (1990).
7Model Rules of Professional Conduct Rule 3.4 (d) (1981); Md. Rules of Professional Conduct Rule 3.4; D.C. Rules of Professional Conduct Rule 3.4.
8For an interesting discussion of the unfairness of legal contention questions in a deposition context see Rifkind v. Superior Ct., 27 Cal. Rptr.2d 822 (1994) (holding that legal contention questions while proper in interrogatory form are improper in a deposition). See also Lance, Inc. v. Ginsburg, 32 F.R.D. 51 (E.D. Pa. 1962).
9Van Pilsum v. Iowa State Univ. of Science and Tech., 152 F.R.D. 179 (S.D. Iowa 1993).
10Fed. R. Civ. P. 26(c); Md. Discovery Guidelines Guideline 10 (1990); Md. R. 2-431 (certificate describing good faith efforts to resolve discovery disputes must be filed with the court); Md. D. Ct. R. 104 (3); D.C. R. 26 (i). See also Md. D. Ct. R. 104 (7) (discovery dispute as to one discovery matter does not justify delay as to taking the discovery for other matters).
11Fed. R. Civ. P. 26(c); See e.g., Md. R. 2-403 (a); Md. D. Ct. R. 104 (13) (proposed confidentiality orders); Md. Rules of Professional Conduct R. 1.3; D.C. Rules of Professional Conduct R. 1.3; D.C. Rule 26 (c).
12Van Pilsum, 152 F.R.D. at 181.
13See generally R. Wydick, The Ethics of Witness Coaching 17 Cardozo L. Rev. 1 (1995); Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable limitations of "Coaching 1 Geo. J. Legal Ethics 389 (1987).
14Model Rules of Professional Conduct Rules 1.7-1.9 (1981); Md. Rules of Professional Conduct Rules 1.7-1.9; D.C. Rules of Professional Conduct R. 1.7-1.9.
15Model Rules of Professional Conduct Rule 4.3 (1981); Md. Rules of Professional Conduct Rule 4.3; D.C. Rules of Professional Conduct Rule 4.3 (b).
16Model Rules of Professional Conduct Rule 4.2 cmt. 4 (1981). This matter is subject to significant variation locally. Compare: Md. Rules of Professional Conduct Rule 4.2 and D.C. Rules of Professional Conduct Rule 4.2 (attorney may communicate about the subject of representation directly with any non-party employee who has authority to bind a party organization).
17For a non-exhaustive list of the range of protective orders which may be sought, see Md. R. 2-403 (a); D.C. R. 26 (c).
18See Fed. R. Civ. P. 30(d) advisory committee notes (amended 1993); D.C. D. Ct. R. 207 (b), (c), (d); D.C. R. 26 (d); Md. Discovery Guidelines Guideline 2.
19Cal. Code Civ. Proc. section 2020. See Md. R. 2-402 (c) (party may obtain discovery for trial preparation); 412 (c), 415 (c) D.C. R. 30 (b).
20Fed. R. Evid. 612. Compare and contrast Cal. Evid. Code 711; International Ins. Co. v. Montrose Chem. Corp. of CA, 282 Cal. Rptr. 783, 786 (1991) (holding that it was "not only discourteous, but also parsimonious and unprofessional" for counsel to refuse to produce documents used to refresh deponent's memory).
21There is a significant split of authority on this issue. Prior to 1985, most courts ordered discovery of all documents reviewed by deponents, even if in a form considered to be work product or privileged. See, e.g., James Julian Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (Del. 1982) (requiring disclosure of deposition binders used to prepare witnesses for depositions); Marshall v. United States Postal Service, 88 F.R.D. 348, 350 (D.D.C. 1980) (unsigned draft affidavit); Wheeling-Pittsburgh Steel and Underwriter Labs., 81 F.R.D. 8, 9-11 (N.D. Ill. 1978) disclosure compelled where deponent prepared by consulting file consisting of his correspondence with counsel). In 1985, the Third Circuit reversed this trend in an important decision with broad ramifications. Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985). See also In re Joint Eastern and Southern District Asbestos Litig. 119 F.R.D. 4 (E.D.N.Y. & S.D.N.Y. 1988); N.F.A. Corp. v. Riverview Narrow Fabrics, Inc. 117 F.R.D. 83 (M.D.N.C. 1987); Omaha Public Power District v. Foster Wheeler Corp., 109 F.R.D. 615 (D. Neb. 1986); Laxalt v. McClatchy, 116 F.R.D. 438 (D. Nev. 1987).
22Counsel are required object to the form of the question and, as a matter of local practice, to state concisely the specific grounds for the form objection -- e.g., "objection, compound" or "objection, calls for speculation." See also Md. R. 2-415; Md. Discovery Guidelines Guideline 9; D.C. R. 30 (c).
23See Fed. R. Civ. P. 30(d); Md. Discovery Guidelines Guideline 8 (c) (1990).
24See e.g., Thomas v. Hoffmann-La Roche Inc., 126 F.R.D. 552 (N.D. Miss. 1989) (imposing sanctions under inherent power); Kellett v. Roberts, 658 N.E.2d 496 (Ill. App. Ct. 1995), app. denied 664 N.E.2d 641 (Ill. 1996). Eastern District of New York's Standing Orders on Effective Discovery in Civil Cases", Rule 11(A): "Repeated directions to a witness not to answer questions calling for non-privileged answers are symptomatic that the deposition is not proceeding as it should." See also Md. Discovery Guidelines Guideline (8)(f)(1)-(3) (1990).
25See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993); United States District Court for the Eastern District of New York, Standing Orders of the Court on Effective Discovery in Civil Cases, Rule 13 (1987); Md. Discovery Guidelines Guideline 8(e).
26See, e.g., Fed. R. Civ. P. 26(b)(5); Md. Discovery Guidelines Guideline 6 (b) (goes further to include other information to identify the document for a subpoena duces tecum).
27See Fed. R. Civ. P. 26(b)(5); Md. Discovery Guidelines Guideline 6(c).
28Van Pilsum v. Iowa State Univ. of Science & Tech. 152 F.R.D. 179 (S.D. Iowa 1993); Unique Concepts, Inc. v. Brown, 115 F.R.D. 292 (S.D.N.Y. 1987); West's California Rules of Court, Los Angeles County Superior Court Rule 7-12 (10) and (11); Texas Lawyer's Creed, art. III, sections 9 and 10.
29See also Fed. R. Civ. P. 26(c); Md. Discovery Guidelines Guideline 10 (1990); Md. R. 2-431 (certificate describing good faith efforts to resolve discovery disputes must be filed with the court); Md. D. Ct. R. 104 (3); D.C. R. 26 (i). See also Md. D. Ct. R. 104 (7) (discovery dispute as to one discovery matter does not justify delay as to taking the discovery for other matters).
30See, e.g., Green v. GTE California, Inc., 34 Cal. Rptr. 2d. 517, 519 (Ct. App. 1994) (sanctioning counsel who engaged in self-help measure by bringing his own video camera and attempting to videotape opposing counsel who he believed to be using intimidating facial expressions and gestures, but without complying with notice requirements nor seeking a protective order). Fed. R. Civ. P. 26(c); See e.g., Md. R. 2-403 (a); Md. D. Ct. R. 104 (13) (proposed confidentiality orders); Md. Rules of Professional Conduct R. 1.3; D.C. Rules of Professional Conduct R. 1.3; D.C. Rule 26 (c).
31Van Pilsum, 152 F.R.D. at 181.
32Combs v. Rockwell Int'l Corp., 927 F.2d 486 (9th Cir. 1991) (substantive changes to a deposition transcript prepared by counsel and signed by a client who swore that he had made the changes himself led to the imposition of Rule 11 sanctions and dismissal of the action). Md. R. 2-415 (d); D.C. R. 30 (e).
33ABA Comm. on Ethics and Professional Responsibility, Formal Op. 93376 (1993) (lawyer in civil case who learns client lied in discovery must take all reasonable steps to rectify including, if necessary, withdrawal, disaffirmance of the work product, notifying opposing counsel, or, if all else fails, direct disclosure to court); In re Mack, 519 N.W.2d 900 (Minn. 1994) (client told lawyer she testified falsely at deposition that she mailed premium check to insurance company; lawyer neither advised her to disclose truth nor disclosed it himself to court or adversary); see generally Nix v. Whiteside, 475 U.S. 157 (1986). Model Rules Of Professional Conduct, Rules 3.3 and 3.4; see also Fed. R. Civ. P. 26(e)(1) and (2). See also Md. Rules of Professional Conduct R. 3.3 (a)(4), 3.4; D.C. Rules of Professional Conduct Rule 3.3, 3.4.
34Waicis v. Superior Court, 276 Cal. Rptr. 45 (Ct. App. 1990) (doctor disqualified from testifying as expert at trial as sanction for doctor's repeated uncooperativeness in permitting his deposition to be taken); Scherrer v. Plaza Marina Com'l Corp., 94 Cal. Rptr. 85, 86-87 (Ct. App. 1971) (striking corporation's answer to complaint and entering default judgment in favor of plaintiff where corporation's president and his counsel failed to appear at two deposition hearings); Illinois E.P.A. v. Celotex Corp., 522 N.E.2d 888, (Ill. Ct. App.) app. denied, 530 N.E.2d 246 (Ill. 1988) (striking claim of E.P.A. for a pattern of discovery abuse including unjustifiable cancellation of depositions); People v. Winfield, 447 N.E.2d 1029 (Ill. Ct. App. 1983). See also Md. R. 2-434(a) (party who fails to attend (limited to party rather than witness) must bear the costs of the deposition).
35In re Marriage of Lemen, 170 Cal. Rptr. 642 (Ct. App. 1980) (sanctions imposed on nonparty deposition witness and his attorney for witness's refusal to answer proper questions at deposition); Plevy v. Scully 89 F.R.D. 665, 666-67; (W.D.N.Y. 1981). See also Fed. R. Civ. P. 37(a); Md. D. Ct. R. 104 (10).
36This paper could not have been written without the assistance of my former associate, Lisa A. Bernstein, who did the necessary research and referencing to provide what I hope will be a useful reference tool.