Depositions are a part of the pre-trial “discovery” stage of litigation, in which a witness is questioned under oath, while their testimony is transcribed by a court reporter. They often occur outside the presence of a judge. One issue that arises is the alleged “coaching” of a witness by their attorney.
In a recent case, Edwards v. Wilkie, Secretary of the Department of Veterans Affairs, 2019 WL 5957171 (S.D.N.Y. Nov. 13, 2019), an employment discrimination case, the court denied the plaintiff’s motion for sanctions, which was based on allegedly improper objections lodged by defendant’s counsel at two depositions.
The court discussed the legal bases for plaintiff’s challenge, namely, Federal Rule of Civil Procedure 30 and 28 U.S.C. § 1927:
Rule 30(c)(2) of the Federal Rules of Civil Procedure provides that “[a]n objection [during a deposition] 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).” Fed. R. Civ. P. 30(c)(2). “It is noteworthy that the rule stops short of absolutely forbidding any objections whatsoever except those that would be waived unless raised.” …
Rule 30(d)(2) does not require a showing of bad faith but authorizes sanctions for conduct that “impedes, delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). “The decision to impose sanctions is at the discretion of the court.” …
Although not every improper objection warrants sanctions, sanctions are appropriate under 28 U.S.C. § 1927 where the attorney’s conduct “essentially destroys a deposition.” … An award of sanctions under 28 U.S.C. § 1927 differs from an award under Rule 30(d)(2), however, because sanctions “under § 1927 require[ ] a clear showing of bad faith … ‘when the attorney’s actions are so completely without merit as to require the conclusion that they must have been taken for some improper purpose such as delay.
Applying the law, the court determined that sanctions were not warranted. For example, the mere volume of defense counsel’s objections or speaking was not dispositive. Context was important, and “courts in the Second Circuit have declined to impose sanctions based solely on voluminous, unwarranted, and argumentative objections where opposing counsel was not prevented from completing the deposition.”
It further determined, upon reviewing the deposition transcripts, “that the objections, while numerous, were not inappropriate or unwarranted”, and “[t]he vast majority of the objections were not speaking objections and did not involve colloquy” and defense counsel instructed the witness not to answer only once.
Plaintiff was able to complete both depositions, and did not identify “any material areas she sought to explore that she was prevented from exploring by defense counsel’s objections.”
[For additional aspects of the court’s analysis, the reader is invited to review the decision itself.]