Commercial Litigation and Arbitration

Speaking Objections at Deposition Sanctioned under Rule 30(d) — Excessive Number of Unnecessary Objections as Sanctionable Even If None Is Argumentative or Suggestive

From Craig v. St. Anthony’s Med. Ctr., 2010 U.S. App. LEXIS 14661 (8th Cir. July 19, 2010):

Once the deposition started, Harter continually made argumentative and suggestive objections. He also engaged in private and off-the-record conversations with his client, answered multiple questions in place of his client, and instructed his client to refuse to answer questions. Only once did Harter assert a privilege to justify an off-the-record conversation or an instruction to his client to refuse to answer. ***

The district court held that Harter had failed to comply with Federal Rule of Civil Procedure 30 to such an extent that the deposition in question was unuseable, and the court granted the motion for sanctions and ordered defense counsel to submit documentation of the firm's fees and costs related to the deposition transgressions.***The district court ordered Harter to pay $1,000 toward defense counsel's $17,236.58 of fees and costs related to the discovery transgressions. ***

We review the imposition of discovery sanctions for an abuse of discretion. See Fed. R. Civ. P. 30 advisory committee's note (explaining Rule 30(d) sanctions are congruent with Rule 26(g) sanctions in all ways but one); Johnson Int'l Co. v. Jackson Nat'l Life Ins. Co., 19 F.3d 431, 438-39 (8th Cir. 1994) (reviewing Rule 26(g) sanctions for abuse of discretion); Perkins v. Gen. Motors Corp., 965 F.2d 597, 600-02 (8th Cir.) (reviewing sanctions for violation of multiple discovery rules for abuse of discretion), cert. denied, 506 U.S. 1020 (1992). Federal Rule of Civil Procedure 30(c)(2) governs the conduct of examinations by deposition: "An objection at the time of the examination . . . must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner." Counsel may instruct a client deponent not to answer only in certain narrowly defined circumstances, including when necessary to preserve a privilege. Fed R. Civ. P. 30(c)(2). The advisory committee's comments explain that argumentative objections, suggestive objections, and directions to a deponent not to answer often disrupt, unduly prolong, and unfairly frustrate deposition testimony. The notes also explain that an excessive number of unnecessary objections may constitute actionable conduct, though the objections be not argumentative or suggestive. To deter such practices, Rule 30(d)(2) authorizes the district court to "impose an appropriate sanction-including the reasonable expenses and attorney's fees incurred by any party-on a person who impedes, delays, or frustrates the fair examination of the deponent." ***

The record reflects ample support for the district court's finding that Harter impeded, delayed, or frustrated the deposition. The $1,000 sanction was not an abuse of discretion.

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