Sarah Bernhardt plays Hamlet, Photographer: James Lafayette, c. 1885–1900
Update (September 10, 2015): My criticisms of extreme sanctions by the U.S. District Court for a lawyer’s deposition misconduct, below, were validated and shared by the U.S. Court of Appeals for the Eighth Circuit and the district court sanctions were reversed.
Original post, October 10, 2014 (under headline:”Something is rotten…right here in the United States…” (or maybe not?): Regular readers of Minnesota Litigator know that I go on walk-abouts to neighboring jurisdictions when I think a neighbor’s news might be of interest to Minnesota Litigator readers. A recent sanction from the U.S. District Court for the Northern District of Iowa got my attention and it might deserve some of yours, too, if you are a civil litigator.
Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal civil litigation right here in the United States. Over two decades ago, Griffin Bell—a former United States Attorney General, United States appeals court judge, and private practitioner—observed: ‘The criticism of the civil justice system has reached a crescendo in recent years. Because much of the cost of litigation is incurred in discovery, the discovery process has been the focal point of considerable criticism.’ How little things have changed.
(footnotes omitted). This is the introductory passage from an order by U.S. District Court Judge Mark W. Bennett (N.D. Iowa), in Security National Bank of Sioux City, as Conservator for J.M.K., a minor, Plaintiff, v. Abbott Laboratories, 299 F.R.D. 595 (N.D. Iowa) sanctioning defense counsel for what the Court viewed as deposition misconduct.
(Incidentally, Twin Cities lawyers, Robert J. King, Jr. and Stephen C. Rathke, represented the plaintiff in the case. At the time they were both with the Lommen Abdo firm. Now King has moved on and Rathke is of counsel with the firm and he recently formed Rathke Mediation, LLC.)
The Court’s anger and frustration at defense counsel’s conduct are obvious from the opinion. But is the Court’s sanction correct?
I have not undertaken enough of a review of the facts or law to express a firm opinion, but, on a quick review, the sanction gives me considerable concern.
The Court faults a defending lawyer at a deposition for 115 “objections to form.” Those who have had the blessing of taking a deposition that I am defending know that I am partial to such objections myself. From time to time, lawyers have gone through the trouble of tallying my objections to form and I confess to having met and possibly exceeded 115 in a deposition.
Here is why: humans VERY OFTEN are inarticulate when they speak. This even happens to lawyers (including me). When witness’ words are transcribed and they become testimonial evidence in which great emphasis may be place on careless or ambiguous speech, this can result in costly misunderstandings or unnecessary disputes down the road.
Q. Are there certain levels that one can get, that have
catwalks or some similar apparatus so I can get to the dryer?A. The dryer is totally enclosed. You cannot get into the
dryer from any of the levels.
Q. Can I get on the outside of the dryer?
The defending lawyer in the Abbott Laboratories case objected to this last question. The Court criticized the objection as “quibbling with the word choice.”
But let’s say, hypothetically, that the witness answered, “yes,” to that question. And let’s say there was no follow-up question. (Don’t forget that a defending lawyer cannot add a follow-up question. Sure, he can do so on “re-direct” 6 hours later. IF he remembers…) And, with this one-word answer, “yes,” let’s say that plaintiff argues at some later date that the testimony was evidence that there was ready access by workers to the outside of the dryer.
That question and answer would be ambiguous. The answer could be uninformative or, worse, it could be unintentionally inaccurate. Would it mean that the worker could literally get direct physical access to the machine, could easily examine the outside of the machine up close? Would it mean the worker can get with a few inches? A few feet? After disassembly of a scaffold or breaking through a wall (that is, with considerable effort and expense)?
As to the lawyer’s form objections, I am happy to say, the Court did not impose sanctions but the Court did consider them excessive and improper. The Court sanctioned the defense lawyer for “coaching,” for objecting, for example, that a question was “confusing,” and then the witness would answer, “I cannot answer that question because it is confusing….”
Again, this seems rather harsh on the lawyer from my perspective. Lawyers listen extremely carefully to questions and they might think of several ways a question could be construed. They want to avoid confusing and ambiguous answers.
The sanction that the Court levied is extraordinary.
Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified “form” objections, witness coaching, and excessive interruptions. The lawyer appearing in the video may mention the few jurisdictions that actually require only unspecified “form” objections and may suggest that such objections are proper in only those jurisdictions. The lawyer in the video must state that the video is being produced and distributed pursuant to a federal court’s sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval. If and when I approve the video, Counsel must (1) notify certain lawyers at Counsel’s firm about the video via e-mail and (2) provide those lawyers with access to the video. The lawyers who must receive this notice and access include each lawyer at Counsel’s firm—including its branch offices worldwide—who engages in federal or state litigation or who works in any practice group in which at least two of the lawyers have filed an appearance in any state or federal case in the United States. After providing these lawyers with notice of and access to the video, Counsel must file in this court, under seal, (1) an affidavit certifying that Counsel complied with this order and received no assistance (other than technical help or help from the lawyer appearing in the video) in creating the video’s content and (2) a copy of the e-mail notifying the appropriate lawyers in Counsel’s firm about the video. The lawyer appearing in the video need not state during the video that he or she agrees with this opinion, or that Counsel was the lawyer whose deposition conduct prompted this sanction. Counsel need not make the video publicly available to anyone outside Counsel’s firm. Failure to comply with this order within 90 days may result in additional sanctions.
Fortunately for the lawyers involved (and perhaps for a broader group of interested lawyers (like me)), the Court, “sua sponte, automatically stay[ed the sanctions order] pending the appeal.” I like to think that the Court may have had some awareness that perhaps it went overboard here but I suppose that is for the U.S. Court of Appeals for the Eighth Circuit to address.
Oh, and, by the way, defense counsel won at trial and the Court was quite complimentary of their conduct at trial.
Despite Counsel’s deposition conduct, I was greatly impressed by how Counsel performed at trial. Unlike the “litigators” I discussed earlier, Counsel was extremely well-prepared, had clearly mastered the facts of this case, and did a great job of incorporating electronic evidence into Counsel’s direct- and cross examinations. Those aspects of Counsel’s noteworthy trial skills, expertise, and preparation are laudable, but they do not excuse Counsel’s pretrial conduct.