Lawyer Sanctioned for Client Misbehavior at Deposition

The owner of the defendant, testifying at his deposition, was unspeakably profane and abusive in GMAC Bank v. HTFC Corp., 2008 U.S. Dist. LEXIS 15878 (E.D. Pa. Feb. 29, 2008). As summarized by the District Court:

Throughout his deposition, Wider sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity. ***

[T]hroughout the nearly 12 hours of deposition testimony ... Wider used the word "fuck" and variants thereof no less than 73 times. To put this in perspective — in this commercial case, where GMAC's claim is for breach of contract and HTFC's counterclaim is for tortious interference with contract — the word "contract" and variants thereof were used only 14 times. ***

Equally serious is Wider's willful exploitation of the discovery process. Wider impeded the deposition by improperly interposing his own objections, delayed the proceedings by providing unnecessarily protracted answers and repeatedly interrupting counsel for GMAC's questioning, and proudly expressed his intent to frustrate his examination. ***

The video recording of the deposition reveals ... [that a]t multiple points during the deposition, Wider would follow his inappropriate, obstructive, or dilatory remarks with a gleeful smirk directed at his counsel, at the transcriptionist, and even directly at the camera.... In fact, after a particularly odious instance of obstruction, Wider would even pat himself on the back, flaunting his exploitation of the deposition process, and asking, "Isn't the law wonderful?"

There was no doubt that the witness was going to be sanctioned (if you want to read the profoundly mundane and stupid comments of the witness, the opinion quotes them at length). But what about his lawyer? The Court identified two rules (not to mention the inherent power of the court) allowing sanctions to be imposed on counsel: Fed. R. Civ. P. 37(a)(5)(A) and Fed.R.Civ.P. 30(d)(2):

The Federal Rules specifically provide for sanctions if "a deponent['s] fail[ure] to answer a question" or "evasive or incomplete" answers at a deposition necessitate a motion to compel. Fed. R. Civ. P. 37(a)(3)(B)(i), (a)(4), (a)(5)(A). These sanctions can apply to attorneys: "If the motion is granted . . . the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). Therefore, an attorney who improperly "advis[es]" a deponent to provide evasive or incomplete answers or to refuse to answer questions propounded at a deposition is subject to sanctions. Sanctions must be imposed unless "circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).

In addition, an attorney may be sanctioned for engaging in conduct that "impedes, delays, or frustrates the fair examination of the deponent." Fed. R. Civ. P. 30(d)(2) (empowering a court to impose an "appropriate sanction," including "reasonable expenses and attorney's fees incurred by any party"); see also In re BWP Gas, 2006 WL 2883012, at *1 (noting that Rule 30(d)(2) can apply to "any . . . person involved in the deposition"); Redwood v. Dobson, 476 F.3d 462, 469-70 (7th Cir. 2007) (applying Rule 30(d)(2) sanctions to an attorney for failing to adjourn a futile deposition and improperly instructing his client not to respond to questions).

What are you supposed to do when your witness is out of control. Tip no. 1: Passive acquiescence is insufficient. Tip no. 2: Don’t snicker at your client’s misconduct.

As evidenced by the portions of the record quoted at length above, throughout the deposition, notwithstanding the severe and repeated nature of Wider's misconduct, Ziccardi persistently failed to intercede and correct Wider's violations of the Federal Rules. See supra Part III.B.1. Instead, Ziccardi sat idly by as a mere spectator to Wider's abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, 15 dared opposing counsel to file a motion to compel, 16 or even joined in Wider's offensive conduct. ***

It is true that any attorney can be blindsided by a recalcitrant client who engages in unexpected sanctionable conduct at a deposition. An attorney faced with such a client cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down. See Redwood, 476 F.3d at 469-70 ("It is precisely when animosity runs high that playing by the rules is vital. . . . Because depositions take place in law offices rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control."). ***

Even if a finding of bad faith were required here, the record, viewed as a whole, inexorably leads to the conclusion that Ziccardi's conduct was undertaken in bad faith. Given the length of the deposition and the severe, repeated, and pervasive nature of Wider's misconduct, it is clear that Ziccardi's failure to intervene was not merely negligent, but rather willful. Ziccardi's bad faith is further revealed by his challenges to opposing counsel to "file whatever motion you want to file" and his snickering at Wider's abusive conduct.” ***

Ziccardi's failure to address, then and there, Wider's misconduct could have no other effect but to empower Wider to persist in his behavior. Under these circumstances, the Court equates Ziccardi's silence with endorsement and ratification of Wider's misconduct. 20 This endorsement and ratification by Ziccardi is the functional equivalent of "advising [Wider's] conduct" under Rule 37(a)(5)(A).***

Rule 30(d)(2) does not require that an attorney take some affirmative act in order to frustrate a deposition, but rather contemplates sanctions for attorney inaction as well. See Fed. R. Civ. P. 30(d)(2) (authorizing sanctions upon any "person who impedes, delays, or frustrates the fair examination of the deponent"); see, e.g., Redwood, 476 F.3d at 467-69 (imposing Rule 30(d)(2) sanctions upon an attorney for failing to suspend a contentious and fruitless deposition, failing to seek a protective order that would have cured the confidentiality dispute hindering the deposition, and instead improperly instructing his client not to answer questions).

Note: The sanction was reaffirmed in an opinion denying reconsideration: 2008 U.S. Dist. LEXIS 62106, (E.D. Pa. Aug. 12, 2008).

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