Losing Party Unsuccessfully Sought to Regulate Deposition Conduct of Opposing Counsel.
Civil litigators have seen it often–an opposing attorney who overuses privilege objections, instructs deponents not to answer based on nonprivileged grounds, coaches the witness through speaking objections or interruptive conferences outside of the deposition, or insults counsel taking the depositions. Apparently, plaintiff got fed up with opposing counsel’s conduct at a deposition, bringing a protective order to control the future conduct of opposing counsel at upcoming depositions. The trial court felt the request was tantamount to a prior restraint on counsel’s speech to lodge objections at future objections, with the correct remedy being to move to compel responses to specific questions that were not answered or obstructed by counsel. A discovery sanction of $1,750 was imposed for filing a frivolous motion under Code of Civil Procedure section 2025.420(d).
Plaintiff appealed in Aceves v. Catellus Development Corp., Case No. B212903 (2d Dist., Div. 2 Feb. 8, 2011) (unpublished).
Plaintiff could not beat the deferential abuse of discretion standard applicable to the lower court’s discovery ruling. The appellate court did observe that it is generally improper to instruct a witness not to answer a question unless a privilege is involved or deposing counsel’s conduct is egregious in nature, with Los Angeles County Superior Court Local Rules 7.12(e)(8) & (9) so holding (including a guideline for counsel not to coach a deponent). The problem was that opposing counsel’s conduct, while labeled as “juvenile at times,” was not really coaching, simply telling the witness not to speculate (although perhaps doing it once too often). Nothing was wrong with telling an employee deponent to refuse to answer questions about attorney notes made during an interview when they were clearly work product protected. The heated exchanges about deposition scheduling did not implicate any suppression of relevant evidence.
Example of colorful deposition behavior involving different parties in another case, as shown on Youtube:
BLOG OBSERVATION–In federal court, district judges may have more leeway to dictate deposition protocol guidelines as standing orders in civil matters. (See Hall v. Clifton Precision, 150 F.R.D. 525, 531-532 (E.D. Pa. 1993) [9 guidelines for deposition protocol often used as standing orders by many district judges].) However, there is nothing expressly akin to these rules in the California Code of Civil Procedure, although a party can certainly seek to compel answers to unanswered questions, although it is infrequently done. (Code Civ. Proc., § 2025.480.) With respect to the Los Angeles local rules, they unfortunately have been clarified in a 1999 ethics opinion as only being directory in nature and ordinarily not giving rise to sanctions, unless a lower court enters the guidelines as a mandatory standing order in civil matters. (See L.A. County Bar Assn. Professional Responsibility & Ethics Comm. Formal Ethics Opinion No. 497 (March 8, 1999).)
BONUS: Link to Wikipedia entry on Catellus Development Corp.