Category Archives: Termination of deposition
Misbehaving and Dealing with the Same During a Deposition
Depositions are legal proceedings which are not typically officiated by a court officer. During such affairs attorneys can behave quite badly. Such behavior can range from simple rudeness to conduct that borders on criminal conduct such as threats of bodily harm or emotional charges to go outside and handle the matter like a man. Needless to say, you don’t want to be that guy. Only the trial court can legally terminate a deposition for abusive conduct by an attorney. Rule 30(d)(3) of the Federal Rules of Civil Procedure provides that a party may move to terminate or limit a deposition “on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party.” If the deposition is terminated you must immediately seek the trial court’s assistance and approval.
This not a course to chart unless it is justified. You and you client can be subject to sanctions and even disciplinary action for improperly terminating a deposition. See Rule of Professional Conduct 3.4. If you guess wrong and do not terminate the deposition properly, you can be responsible for paying the other party’s attorney fees. Smith v. Logansport School Corp., 139 F.R.D. 637 (N.D. Ind. 1991). Here is a famous example of things going south during a deposition courtesy of YouTube:
So be ready if abusive behavior occurs during a deposition. Act quickly and wisely… and remember don’t be that guy.
Guarding Your Expert from Aggressive Counsel
Preparation is your greatest tool to avoid problems caused by difficult or agressive
attorneys. Ultimately, once you are at the deposition there is little you can do without risking
sanctions. Harassing behavior. If an attorney engages in ongoing harassing behavior which
is truly beyond the pale, call the magistrate of court and have a discovery conference. However,
make sure it is truly exceptional.
As mentioned earlier, your best tool to control the deposition is to prepare your expert. If
truly extraordinary harassment or name calling occurs and persists even after you have addressed
it on the record, and the Court is not available to resolve your dispute, you can move to terminate
the deposition. Rule 30(d)(3) of the Federal Rules of Civil Procedure allows a litigant to suspend
a deposition at any point for the purpose of filing a motion to terminate or limit the deposition on the grounds that it is “being conducted in a manner that unreasonably annoys, embarrasses or oppresses the deponent or the litigant.” Obscenity or insults, persistent questioning that embarrasses a witness or concerns privileged matter are sufficient grounds for suspending or terminating a deposition. See Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007); Lewis v. United Air Lines Transp. Corp., 32 F. Supp. 21 (W.D. Pa. 1940); Broadbent v. Moore-McCormack Lines, 5 F.R.D. 220 (E.D. Pa. 1946); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965).
If a suspension is sought, the deposition remains postponed until such time as the court issues an
order. The loser is subject to fees and sanctions under Rule 37(a)(5). Smith v. Logansport Community Schools Corp., 139 F.R.D. 637 (N.D. Ind. 1991).
The Barrister's Toolbox 