Commercial Litigation and Arbitration

Sanctions — Instructions Not to Answer

Under Rule 30(d)(4), ‛A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4) [i.e., for a protective order]." Sometimes, questions are beyond the pale, and this limitation is extremely confining. Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007), is an example. It was a civil rights action brought by a convict against his criminal attorney and others, including the criminal attorney’s lawyer in a prior civil action brought by the convict, arising out of what the convict complained was ineffective assistance of counsel. The plaintiffs’ lawyer’s deposition questions to the lawyer for the criminal attorney in the prior civil action included the following:

Q [by Plaintiffs’ Counsel]: Mr. [X], have you ever engaged in homosexual conduct?

[Defense Counsel 1]: Objection, relevance.

[Defense Counsel 2]: I join.

[Defense Counsel 1]: I believe it violates Rule 30, and I'm instructing him not to answer the question.

A [by Mr. X]. I'm not answering the question.

[Defense Counsel 2]: I join the objection.

Q. Mr. [X], are you involved in any type of homosexual clique with any other defendants in this action?

[Defense Counsel 1]: Same objection. Same instruction.

[Defense Counsel 2]: I join the objection.

The District Judge sensibly concluded that there was no point in sanctioning anyone -- the misconduct was pervasive and was triggered by the outrageous behavior of plaintiffs’ counsel. The Seventh Circuit reversed, holding that the instructions not to answer, which clearly violated Rule 30(d), should have been sanctioned:

‛[Defense Counsel 1] violated this rule [30(d)] repeatedly by telling [Mr. X] not to answer yet never presenting a motion for a protective order. The provocation was clear, but so was [Defense Counsel 1’s] violation…. [Mr. X] would have been entitled to stalk out of the room. [Defense Counsel 1] justifiably could have called off the deposition and applied for a protective order (plus sanctions). Fed. R. Civ. P. 26(c), 30(d)(3), (4). Instead he told [Mr. X] not to answer, which was untenable as no claim of privilege had been advanced.“

The Seventh Circuit is technically correct. It ended up censuring everyone, including the witness (Defense Counsel 2 got off with an admonition). It is, however, difficult not to sympathize with the District Judge and with defense counsel. Would civility in practice have been enhanced, in general or in this case, if the deposition had been halted and a protective order moved for? How many times would defense counsel have had to file such motions? At what point, do practicalities control? Motions are expensive and self-help much more expedient. Most lawyers who act like the plaintiffs’ lawyer in Redwood would never have the temerity to bring the issue to the attention of any court. His behavior, in the words of the Seventh Circuit, was ‛shameful.“ Regrettably, there is technically no in pari delicto defense to sanctions, and, as Redwood reflects, provocation will not necessarily move a court — at least not a court of appeals. Compare Magistrate Judge Henry Pitman's decision not to impose sanctions for, inter alia, instructions not to answer under less egregious circumstances in Cameron Indus., Inc. v. Mothers Work, Inc., 2007 U.S. District LEXIS 41482 (S.D.N.Y. June 6, 2007).

Share this article:


Recent Posts