Don't let your opponent disrupt depositions: opposing attorneys may use witness conferences, speaking objections, and errata sheets to obstruct a deposition. Here are some countermeasures.

In the last 60 years, lawyers' ability to obtain evidence during depositions has increased significantly. The discovery process has moved from an exercise of "hide the ball" toward full disclosure of relevant information, according to one legal commentator. (1) Depositions can be the most valuable part of discovery for unearthing critical case information.

Ascertaining what a nonexpert witness or defendant knows, saw, heard, did, or thought requires a one-on-one question-and-answer session. The deposing attorney is entitled to have questions answered as phrased and to create a transcript of important admissions by deponents. The ultimate goal of a deposition is to generate a clean transcript that can be used at trial for all permissible purposes, whether substantively or for impeachment.

Unfortunately, some lawyers have developed an argumentative, antagonistic approach to defending depositions that can seriously impede the flow of information from a witness. While they continue to obstruct the deposition process, courts and bar associations have moved to curb this abuse, and there are tactics attorneys can use when facing obstructive counsel. (2)

Three common forms of obstruction used during depositions are:

* conferences to frame a witness's answer or to interrupt the proceedings

* speaking objections and interjections to suggest answers or disrupt the flow of information

* errata sheets to change a witness's testimony.

Conferences

A question-and-answer session between deposing counsel and the witness should follow the Rules of Civil Procedure. Federal Rule of Civil Procedure 30(c) provides: "Examination and cross-examination of witnesses may proceed as permitted at the trial tinder the provisions of the Federal Rules of Evidence, except Rules 103 and 615."

Unnecessary interruptions for conferences or consultations are not allowed at trial and may negate a deposition's effectiveness by allowing the deponent's lawyer to act as an intermediary who interprets questions and frames answers for the deponent. (3) Yet there is no uniform federal or state rule that acknowledges the need for some forms of conferences during depositions while prohibiting others.

Deponents and their counsel may want to break for a conference for several reasons, described by one legal commentator as the good, the bad, and the ugly. The good: An attorney might ask for a conference to correct any inadvertent inaccuracies made by a nervous deponent, or to discuss whether a privilege applies to a particular question. The bad: A deponent's attorney may request a break to improperly provide answers for the deponent or to disrupt the flow of the proceedings. The ugly: An attorney may also initiate a conference if the deponent is purposely providing incorrect answers to deposing counsel. (4)

These reasons for conferences call into question which rule should govern their availability and what steps lawyers can take to ensure that their actions do not obstruct the deposition process.

Eleven years ago, in one of the most often-cited responses to the increasing use of attorney-witness conferences during depositions, the U.S. District Court for the Eastern District of Pennsylvania set out a strict "no consultation" rule. (5) In Hall v. Clifton Precision, Judge Robert Gawthrop prohibited off-the-record conferences during the deposition, planned breaks, and even recesses at night. The only exception was if the deponent and his or her attorney sought to consult over whether a privilege applied to a question.

This severe rule suggested that there is a presumption of impropriety in all conferences between a lawyer and deponent, except for those involving whether to assert a privilege.

Other federal courts have not followed Hall's approach, but neither have they determined a uniform method for weeding out improper consultations. Some approaches include the unfettered right to consult with a deponent, while others grant the right only in limited circumstances; most jurisdictions do not have any rules governing consultations during depositions. (6)

In Odone v. Croda International, the U.S. District Court for the District of Columbia declined to sanction an attorney for conferring with a witness during a break after deposing counsel finished questioning the witness but before the deposition concluded. (7) The defending attorney did not call for the break, the deposition was complete, and the consultation addressed whether the deponent bad misunderstood a question. The court stated that Hall did not require a blanket prohibition of all private conferences, but barred only those held during a witness's deposition.

State-level courts also take varied approaches. In Acri v. Golden Triangle Management Acceptance Co., a Pennsylvania court rejected the Hall rules, finding they would not adequately protect a witness and would affect attorneys' ability to correct any inaccuracies. (8) South Carolina allows off-the-record attorney-deponent conferences only to determine whether to assert a privilege or discuss a document yet to be disclosed. The deponent's attorney must note on the record that the break is for one of these purposes. (9) Delaware courts follow a strict rule, even prohibiting consultations in recesses of up to five days. (10)

On the other hand, Texas allows attorney-deponent consultations during agreed-upon breaks and recesses. (11) The Los Angeles County Bar Association's Professional Responsibility and Ethics Committee has stated that there is "no ethical duly to refrain from interrupting a deposition to consult with a client." (12)

In jurisdictions where the issue has not yet been decided, it may be helpful to note that in Perry v. Leeke, the Supreme Court stated that a witness at trial "has no constitutional right to consult with his lawyer while he is testifying." (13) Commentators have argued that this prohibition should carry over into the deposition setting. (14)

In jurisdictions where no rules govern off-the-record attorney-witness consultations, deposing lawyers may need to make a strategic decision before a critical deposition: to move, at the outset, for a standing order to restrict consultations to those involving a privilege or correcting inaccurate witness testimony. This order will act as a guide for positive conduct and streamline the deposition process for both parties. (15)

The attorney should also request that consultations or breaks, and any subsequent conversations that take place at their request, be noted on the record. (16) As a practical point, it is wise to immediately state on file record anything that occurs off the record and warn the other attorney that if it happens again, you will seek judicial intervention. Finally, when opposing counsel improperly interrupts a deposition, an attorney may suspend the deposition and ask the court to issue an order governing opposing counsel's conduct during the deposition.

Speaking objections

An unscrupulous attorney can use rambling, argumentative, or suggestive objections during a deposition to provide the deponent with the preferred answer. The same is true of brief interjections such as "if you remember" or "to the best of your knowledge" that follow deposing counsel's questions. (17)

These speaking objections and brief interjections relate to a broader issue. Federal Rule of Civil Procedure 30(c) instructs attorneys not to object at a deposition unless the same objection could be made at trial. (18) If depositions are, as some argue, analogous to examination at trial, jurisdictions should forbid virtually all attorney client conferences during depositions and prohibit speaking objections and interjections from defending counsel.

Hall imposed a strict rule limiting the grounds for objections and requiring that they be concise and nonsuggestive. (19) The court reasoned that allotting speaking objections and interjections could become a tool for defending attorneys to effectively circumvent the no-consultation rule and interrupt the flow of a deposition. The court further prohibited an attorney from instructing a witness not to answer a question, unless the objection was that the witness's potential answer was "protected by a privilege or a limitation on evidence directed by the court." (20)

After Hall, Rule 30(d) (1) was adopted, requiring any objection during a deposition to be "stated concisely and in a nonargumentative and nonsuggestive manner." (21) This rule further enforces Rule 30(c)'s instruction that attorneys treat a deposition as if it were an examination at trial.

Several states have also dealt with the use of speaking objections and interjections to improperly coach deponents. (22) Texas limits objections during depositions to three specific types--leading, form, and nonresponsive--which are waived if not stated precisely. (23) Maryland does not require that the grounds for an objection be stated, but it allows either party to request that a deponent leave the room when an objection is made. (24) Michigan requires a deponent who knows he or she will be asserting a privilege to make a motion to prohibit taking the deposition; failing to do so may result in the party's being subject to specified costs. (25)

Paramount v. QVC Network, Inc., provides an example of defending counsel's inappropriate speaking objections. (26) In an addendum having "no bearing on the outcome of the case," the Delaware Supreme Court addressed the counsel's deposition conduct.

In response to a question from deposing counsel, the defending attorney stated: "Don't answer that. How would he know what was going on in [the witness's] mind? Don't answer it. Go on to your next question." (27) His conduct included degrading comments to deposing counsel and numerous speaking objections and interjections.

The court, while noting attorneys' duty to straunchly defend their clients, found the attorney's conduct "outrageous and unacceptable." (28) He was a Texans lawyer who was not appearing pro hac vice, so the court could not formally reprimand him, but it noted that if such conduct occurred during a deposition, deposing counsel would be within his or her right to immediately move for sanctions and/or a protective order to stop the conduct.

Both the federal and state rules acknowledge that coaching a witness with speaking objections and interjections should be prohibited. Some commentators argue that this prohibition is the common law in the states, including those that have yet to adopt or reject Rule 30(d)(1). (29)

Although the rules may not be uniform in their extent and reach, attorneys may take simple steps to combat the use of speaking objections and interjections even if their jurisdictions do not take a strict approach. Deposing counsel may state at the beginning of the deposition that the witness is free to ask deposing counsel to clarify, to state that he or she does not understand a question, or to state that he or she does not know an answer or recall an event. (30) When a defending attorney then improperly objects or interjects, deposing counsel may warn the attorney that his or her conduct is violating the established deposition procedures. (31)

Besides requesting a standing order, videotaping a deposition may help eliminate objections and interjections because audiovisual recording tends to keep attorneys on their best behavior. The amended Federal Rules of Civil Procedure make it easier to videotape depositions. (32)

As a further measure against any appearance of impropriety, a defending attorney making an objection on the record can instruct the witness to leave the room. This will help overcome any claim that the defending attorney is attempting to suggest answers to the witness; it would be similar to a sidebar during trial. In jurisdictions where applying privilege may allow counsel to object to questions, the defending attorney must know the available privileges and the proper circumstances for invoking them.

Errata sheets

Under Federal Rule of Civil Procedure 30(e), witnesses can use an errata sheet to correct typographical errors and any inaccurate testimony. (33) However, attorneys may abuse errata sheets, to the point that some courts refer to them as a "take-home examination" for the deponent. (34) Some deponents, often at the request of their attorneys, use errata sheets to change unfavorable testimony. Commentators argue that attorneys who encourage witnesses to change damaging testimony are coaching them. (35)

While most agree that a deponent should correct any errors in form or transcription, the courts are split as to the scope of substantive changes that can be made under Rule 30(e). Some allow changes that materially alter a deponent's testimony, such as changing answers from yes to no, while others strictly adhere to Rule 30(e) provisions and require that the deponent provide a reason for each change. (36)

In Greenway v. International Paper Co., the U.S. District Court for the Western District of Louisiana set forth strict limitations on errata sheets. (37) It refused to let a witness make 64 changes--many of them substantive--to the deposition transcript. They involved switching answers from yes to no, adding lengthy explanations to answers, and changing relevant numbers.

The court stated that the purpose of Rule 30(e) was to correct reporting errors, both substantive (such as where the reporter noted a yes answer when the deponent said no) and formal (such as incorrect spellings of names). Judge F.A. Little Jr. reasoned that allowing deponents to edit the testimony they gave under oath would allow them to "merely answer the questions with no thought at all and then return home and plan artful responses." Unlike an interrogatory, he wrote, "a deposition is not a take-home examination." (38)

Courts that allow wholesale changes generally let the opposition reopen the deposition and keep the original testimony as part of the record so it can be used at trial to invalidate the credibility of any change. (39) In Lugtig v. Thomas, the U.S. District Court for the Northern District of Illinois declined to strike 69 deposition changes, most of them substantive. (40) The court cited the language of Rule 30(e) and noted that it does not limit the types of changes a deponent can make, nor does it compel a judge to assess the reasons for any changes.

However, the court did hold that a deponent must give a specific reason for each change, that the original answers to deposition questions remain as part of the record, and that these original answers can be read at trial. Further, it said that if any changes to answers render a deposition "incomplete or useless without further testimony," deposing counsel may reopen the deposition. (41)

Changes made by the deponent's attorney raise graver issues. In Combs v. Rockwell International Crop., the plaintiff-deponent was satisfied with his answers but gave his attorney the authority to change the responses. (42) The attorney made 36 changes, including numerous substantive changes that altered the deponent's testimony, which the witness never reviewed. The defendants filed a motion to dismiss for violation of Rule 30(e), and the Ninth Circuit--stating that the conduct of both the attorney and the deponent constituted falsifying evidence--upheld the trial court's dismissal.

Approach errata sheets with caution. In most jurisdictions, any material changes can come under intense scrutiny at trial in an attempt to impeach the witness. While inaccuracies must be addressed, it is prudent to have a witness provide clear reasons for any change to the record. (43) When no reasons are given, deposing counsel can move to reopen the deposition and probe the reasons for the changes, move to strike the answers, or use the changes to impeach the witness at trial. (44)

Regardless of a jurisdiction's approach to the use of errata sheets, attorneys should not urge witnesses to change deposition answers. Otherwise, the attorney will be replacing the witness's testimony with his or her own, which may effect changes the witness may believe unnecessary. (45)

Curbing abuse

The increase in questionable conduct during depositions has coincided with the use of depositions as an invaluable discovery tool. As both federal and state courts move toward curbing abuse of the process, attorneys must be aware of the judicially imposed duties for both sides. In the absence of judicial intervention, attorneys can take affirmative steps to ensure that their conduct does not raise questions of impropriety, and that the search for witnesses' true knowledge of the events is carried out without unnecessary interference.

Notes

(1.) Robert B. Sykes, Abusive Deposition Objections and Tactics--In Search of a Standing Order, UTAH B.J., Aug. 1998, at 8, 10.

(2.) A. Darby Dickerson, Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, GEO. J. LEGAL ETHICS, Fall 1998, at 1.

(3.) Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993).

(4.) David H. Taylor, Rambo as Potted Plant: Local Rulemaking's Preemptive Strike Against Witness-Coaching During Depositions, 40 VILL. L. REV. 1057, 1070-80 (1995).

(5.) Hall, 150 F.R.D. 525, 531-32.

(6.) A. Darby Dickerson, The Law of Ethics and Civil Depositions, 57 MD. L. REV. 273, 309 (1998).

(7.) 170 F.R.D. 66,70 (D.D.C. 1997) (mem.).

(8.) 142 P.L.J. 225, 228 (Allegheny Co. 1994).

(9.) S.C.R. CIV. P. 30(j); Allen K. Harris, The Professionalism Crisis--The 'Z' Words and Other Rambo Tactics: The Conference of Chief Justice' Solution, 53 S.C.L. REV. 549, 576 (2002).

(10.) DEL. R. CIV. P. 30(d)(1); Gregory S. Weber, Potential Innovations in Civil Discovery: Lessons for California from the State and Federal Courts, 32 MCGEORGE L. REV. 1051, 1079 (2001).

(11.) TEX. R. CIV. P. 199.5(d).

(12.) Los Angeles County Bar Association Professional Responsibility and Ethics Committee, Ethics Opinion No. 497: Consulting with a Client During a Deposition (Mar. 1999), available at www.lacba.org/showpage.cfm?pageid=427 (last visited Sept. 28, 2004).

(13.) 488 U.S. 272, 281-82 (1989).

(14.) Dickerson, supra note 6, at 318.

(15.) See Sykes, supra note 1, at 22.

(16.) Id.; Sandra F. Gavin, Playing by the Rules: Strategies for Defending Depositions, 1999 L. REV. MICH. ST. U.-DET. C.L. 645.

(17.) Dickerson, supra note 6, at 347-48.

(18.) Sykes, supra note 1, at 9.

(19.) Hall, 150 F.R.D. 525, 530.

(20.) Id. at 531.

(21.) FED. R. CIV. P. 30(d)(1).

(22.) See Weber, supra note 10, at 1077.

(23.) TEX. R. CIV. P. 199.5(e); Weber, supra note 10, at 1077.

(24.) MD. R. DISCOVERY 9; Weber, supra note 10, at 1077.

(25.) MICH. R. CIV. P. 2.306(D)(3); Weber, supra note 10, at 1077.

(26.) 637 A.2d 34 (Del. 1994).

(27.) Id. at 53.

(28.) Id. at 55.

(29.) E.g., Sykes, supra note 1, at 12.

(30.) Dickerson, supra note 6, at 351.

(31.) Id.

(32.) Gavin, supra note 16, at 670.

(33.) Dickerson, supra note 2, at 52.

(34.) See, e.g., Duff v. Lobdell-Emery Mfg. Co., 926 F. Supp. 799, 803 (N.D. Ind. 1996).

(35.) Dickerson, supra note 2, at 52.

(36.) Id. at 55.

(37.) 144 F.R.D. 322 (W.D. La. 1992).

(38.) Id. at 325.

(39.) Dickerson, supra note 2, at 52, 55; David A. Wollin, Everything You Always Waned to Know About Depositions But Your Client Could Not Afford to Research, R.I.B.J., May/June 2002, at 5, 37.

(40.) 89 F.R.D. 639, 641-42 (N.D. Ill. 1981).

(41.) Id. at 642.

(42.) 927 F.2d 486, 488 (9th Cir. 1991).

(43.) Dickerson, supra note 2, at 55.

(44.) Id. at 59.

(45.) Id. at 63.

VALERIE A. YARASHUS and DAVID MCCORMACK practice law with Sugarman & Sugarman in Boston.