Who Knew? Civility Required in New York State Depositions

Echoing the justification of hordes of surly lawyers, the plaintiff’s counsel in Laddcap Value Partners LP v. Lowenstein Sandler PC, 2007 N.Y. Misc. LEXIS 8642; 238 N.Y.L.J. 116 (Sup. Ct. N.Y. Co. Dec. 5, 2007) — when called to task for speaking objections, sexist comments and generally obnoxious behavior — defended with the assertion that “while he ‘aspires to be civil’ to other counsel, he is ‘not aware of any rule or law which requires civility between counsel.’” It appears that he was not familiar with, inter alia, § 221 of the Uniform Rules for the Trial Courts, a rule that was adopted more than a year ago and which provides:

Section 221.1(a) (Objections at Depositions): “***All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to article 31 of the CPLR” (emphasis added).

Section 221.1(b) (Speaking Objections Restricted): “Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning***” (emphasis added).

Section 221.2 (Refusal to Answer When an Objection Is Made): “***An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor***”

Held: “It was improper for [plaintiff’s counsel] to direct the witness not to answer where none of the grounds in 221.2 were stated. Indeed, upon a review of the transcript, none of the grounds in 221.2 existed.” The Court observed: “That [plaintiff’s counsel] claims that he knows of no rule requiring attorneys to be civil is baffling and the Court is not swayed by [plaintiff’s counsel’s] pledge to behave at future depositions.” Referee appointed to supervise all remaining depositions.

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