We’ve seen one judge warn a lawyer not to call their adversary an “asshole” in private correspondence. Now we have a decision imposing a $4,700 fine/sanction on a lawyer for (e.g.) calling their adversary a “racist” during a deposition.
In Scott-Iverson v. Indep. Health Ass’n, Inc., No. 13-CV-451V(F), 2016 WL 7320067 (W.D.N.Y. Dec. 15, 2016), the court discussed and applied the rules governing attorney conduct at depositions.
Among plaintiff’s allegations in this Title VII race and sex-based discrimination/hostile work environment case was that a co-worker dressed up as “Aunt Jemima”, an offensive racial stereotype, in plaintiff’s presence. (I wrote about the case here.)
This decision relates to defendant’s motion to compel a further deposition of plaintiff and for sanctions against plaintiff and plaintiff’s counsel.
In civil litigation, the “deposition” is a question-and-answer session where the witness provides, under oath, answers to questions “on the record”. The process is regulated by various rules, including, as relevant here, Federal Rule of Civil Procedure 30.
Fed. R. Civ. P. 30(c)(2) provides:
Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—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. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
Since depositions are typically conducted in lawyers’ offices and outside direct judicial supervision, the opportunity for abuse is arguably enhanced. One need not venture far online to see lawyers behaving badly at depositions. See, e.g., this, this, and this.
In Scott-Iverson, among the exchanges cited by the court was the following:
In response to [defense counsel]’s request that Plaintiff produce a log  of Plaintiff’s activities following her employment with Defendant, which Plaintiff refused to produce, [plaintiff’s counsel] objected and, after calling [defense counsel]’s request “absurd,” [plaintiff’s counsel] went on to accuse [defense counsel] of attempting to “use the discovery [request] to harass and badger my client, presumably because you are a racist.” (Emphasis added.)
The court’s assessment of this situation is instructive to attorneys in relation to their deposition conduct. Judge Arcara explained:
On its face, [plaintiff’s counsel]’s outburst, wholly unprovoked based on the court’s review of the record, by anything [defense counsel] had said up to this point, constitutes improper argument in connection with a simple objection, apparently one based on a perceived lack of relevance by [plaintiff’s counsel], in violation of Deposition Guideline No. 4 (“counsel’s statements when making objections should be succinct and verbally economical, stating the basis of the objection and nothing more”), and Deposition Guideline No. 10 (“counsel for a witness shall not engage in any argument with examining counsel as to the objectionability of any question. Rather, he may note his objection and permit the witness to answer the question, subject to the objection.”). Additionally, although not a basis for sanctions under the court’s Civility Principles, [plaintiff]’s impugning of [defense counsel] as a “racist” constitutes a clear and unmitigated violation of Civility Principle—Lawyers’ Duties to Other Counsel No. 2 (“We will abstain from disparaging personal remarks or acrimony toward other counsel….”). Such aspersions have no place in the litigation process and cannot be tolerated. Merely questioning a plaintiff regarding the basis for alleging race discrimination does not mean examining counsel is a racist or harbors racial animus toward the witness. (Emphasis added.)
It ultimately imposed a fine of $500 upon plaintiff’s counsel “for each of the four aspersions upon [defense counsel]’s character as a ‘racist,’ or engaging in racially discriminatory examinations of Plaintiff, and a fine of $50 for each of the 54 violations of Rule 30(c)(2), and the Deposition Guidelines subject to sanctions as determined by the court.”