A Cautionary Tale Regarding Attorney Deposition Conduct

Despite what popular culture may imply, the main battles of litigation are not waged in the courtroom, but rather in various pre-trial events that, together, comprise what is known as “discovery.” In this phase, the parties use various methods to obtain (“discover”) information from the other side.

Among the various (and most prevalent) discovery methods is the “deposition,” a proceeding at which a witness provides testimony – in response to questioning and under oath – which is transcribed by a court reporter (and, in some cases, recorded by a videographer). Depositions are, typically, held in a private office of either party’s counsel’s office or a court-reporting company’s facility (i.e., not in a courtroom and not in the presence of a Judge).

The importance of deposition testimony to case preparation and outcome, coupled with the absence of direct judicial supervision, give rise to the very real possibility that one or both parties’ lawyers will – under the guise of “zealous advocacy” – attempt to obstruct the other side’s attempts to elicit testimony from their client. In 2006, in an effort to curb these abuses, New York added to its court rules Part 221, titled “Uniform Rules for the Conduct of Depositions.”

In Brightman v. Corizon, Inc., 2021 NY Slip Op 50735(U) (N.Y. Sup. Ct. N.Y. Cty. July 29, 2021), an employment discrimination case, the court held that plaintiff’s counsel’s conduct during plaintiff’s deposition violated these rules, granted defendants’ motion to compel, and held that sanctions were (partially) warranted.

The court discussed and explored three specific issues relating to plaintiff’s deposition: (1) improper objections; (2) improper instructions not to answer questions; and (3) discovery concerning a consultation between plaintiff and her counsel during a deposition break.

Objections

As to the improper objections, the court explained the law:

Pre-trial depositions are governed by CPLR 3115 and by the Uniform Rules for the Conduct of Depositions. The “Uniform Rules, as amended in 2006, sharply limit the appropriate scope of objections at a deposition.” (Veloso v Scaturro Bros., Inc., 68 Misc 3d 1024, 1026 [Sup Ct, NY County 2020].) The Rules permit only those objections that would be waived under CPLR 3115 (b)-(d) if not interposed—principally an objection to the form of a question. (See 22 NYCRR 221.1 [a]; CPLR 3115.) Ordinarily, therefore, it would not be proper to object to a question on the ground that the question seeks irrelevant information, or that the question has previously been asked and answered. (See Pedraza v New York City Transit Auth., 2016 NY Slip Op. 30105[U] at *9 [Sup Ct, NY County Jan. 20, 2016] [noting that objections that are not required to be made should not be made].)

The Uniform Rules also expressly limit “[s]peaking objections.” (22 NYCRR 221.1 [b].) Objections must instead “be stated succinctly and framed so as not to suggest an answer to the deponent.” (Id.) Additionally, except as otherwise permitted by CPLR 3115 and § 221.1, “persons in attendance” at the deposition “shall not make statements or comments that interfere with the questioning.” (Id.) Speaking objections are thus singled out as undesirable: they are not necessary to preserve an objection to form, they disrupt and impede the conduct of the deposition, and they risk coaching the deponent on how to answer a pending question. (See e.g. Freidman v Fayenson, 2013 NY Slip Op 52038[U], at *11-*12 [Sup Ct, NY County Dec. 4, 2013] [criticizing speaking objections and other statements made by counsel during a deposition], aff’d sub nom. Friedman v Yakov, 138 AD3d 554, 555 [1st Dept 2016].)

This is not to say that attorneys defending depositions are powerless to intervene against questioning that is badgering, harassing, or otherwise improper and prejudicial. Rather, the Uniform Rules make clear that such interventions must be the exception, rather than the norm—and that a given intervention must be (i) uncommon, (ii) made only when plainly necessary, and (iii) no more than extensive than required to protect the witness against the improper line of questioning.

Applying these principles, the court explained:

Here, defendants argue that plaintiff’s counsel’s objections frequently exceeded their proper bounds under the Uniform Rules. This court agrees. The deposition transcripts and recording reflect that counsel made a large—and clearly excessive—number of objections, many of which were made on improper relevancy or asked-and-answered grounds, and many of which were speaking objections. The record also reflects that counsel repeatedly made other improper statements and interjections during the deposition, some of which included unnecessary personal commentary directed to the attorney taking the deposition. And several of these improper speaking objections or comments by counsel appeared—whether by intent or merely by effect—to guide the deponent’s ensuing answers.

The court rejected plaintiff’s counsel’s contention that her conduct was “appropriate and no more than necessary to protect Plaintiff from the harassing, bullying and coercive conduct of Defendants’ attorney.” (Internal quotation marks omitted; cleaned up.)

Instructions Not to Answer

Next, the court turned to plaintiff’s counsel’s inappropriate instructions not to answer certain questions.

The court explained:

The Uniform Rules provide that even when a proper objection has been posed, the witness must still ordinarily answer the question—and that counsel may not direct the witness to refrain from answering. (See 22 NYCRR 221.1 [a], 221.2.) This rule has three narrow exceptions: (i) to “preserve a privilege or right of confidentiality”; (ii) to enforce a limitation set forth in a court order; (iii) “when the question is plainly improper and would, if answered, cause significant prejudice to any person.” (22 NYCRR 221.2 [a]-[c].)

Specifically, the court identified three instances where plaintiff’s counsel instructed her client not to answer deposition questions: (1) Plaintiff’s use of her son’s email address for work communications; (2) Attempts by defendants to review plaintiff’s driver’s license while they still employed her; and (3) Questions about plaintiff’s understanding of certain staff requirements mandated by defendants’ contract with New York City.

One-by-one, the court explained why these questions were not objectionable and, thus, not the proper subject of an instruction not to answer:

This court concludes that plaintiff should be required to answer each of these questions. With respect to the first question, plaintiff contends now that counsel’s instruction not to answer was proper because the question sought information both irrelevant and confidential. (See NYSCEF No. 67 at ¶ 31-32.) But relevancy is not a basis on which to instruct a witness not to answer. Given that plaintiff herself testified that she sometimes used her son’s email address for Corizon-related correspondence, defendants’ asking for that address sought relevant information. And as this court held in Veloso, that an email address might be “private” in the ordinary sense of the word does not mean that defendants’ asking for an email address at deposition would abridge the deponent’s “right of confidentiality” within the meaning of § 221.2 (a). (See 68 Misc 3d at 1028-10130.) Further, plaintiff does not dispute that the parties had entered into a confidentiality agreement that encompassed her deposition testimony.

With respect to the second question, this court understands plaintiff’s position that the general topic of defendant Donald Doherty’s assertedly asking plaintiff for her driver’s license had been repeatedly covered already before this particular question. At the same time, the particular question at issue was somewhat different: in effect, why plaintiff would object to providing Doherty with her driver’s license or a copy to eliminate doubt about her professional credentials. And that was new ground. Additionally, even if plaintiff’s counsel believed that defendants’ continuing to ask questions on this general topic was harassing and therefore patently improper, a direction not to answer is proper only if a question is patently improper and would be prejudicial if answered. (See 22 NYCRR 221.2 [c].) Plaintiff has not demonstrated that she would have been prejudiced had she been required to answer the particular question at issue. Even if defendants’ question had been mischaracterizing plaintiff’s prior testimony, as plaintiff asserts (and this court is skeptical that plaintiff is correct on that point), plaintiff could have addressed any such mischaracterization in her answer.

With respect to the third question, as this court reads the transcript, plaintiff’s counsel’s instruction not to answer was based on counsel’s view that the question at issue had already been asked and answered. An asked-and-answered objection is not a proper basis to instruct a witness not to answer. This court also agrees with defendants that plaintiff had not yet fully answered the question at the time of the instruction not to answer; and that plaintiff’s subsequent answer was difficult to understand and not responsive.

The court, therefore, granted defendant’s motion to compel on this point.

Communication During Break

Third, the court addressed the parties’ disagreement about “whether plaintiff properly refused to turn over (or answer any questions about) a note she received from her counsel during a brief break in the deposition sought by plaintiff for health-related reasons with a question pending.” The court held that plaintiff must answer questions about this communication.

Initially, since the communication occurred during a break taken to accommodate the deponent’s physical limitations, neither 22 NYCRR § 221.3 (which prohibits an attorney from interrupting the deposition “for the purpose of” communicating with the deponent) did not apply.

The court held that defendants did not show that the communication at issue here was impermissible, nor that “otherwise-privileged communications between client and attorney lose that status merely by virtue of being ‘impermissible’ under the rules governing depositions.”

This, however, did not end the inquiry:

Ultimately, what occurred here was that plaintiff’s counsel instructed her client not to answer questions posed during a deposition. In the circumstances of this exchange, that instruction would be permissible only to protect a privilege or right of confidentiality.[FN6] (See 22 NYCRR 221.2 [a].) At the deposition itself, plaintiff’s counsel asserted—without elaboration—that the instruction not to answer was on the basis of “[c]onfidentiality.” (NYSCEF No. 53 at 499:9-12.) On this motion, plaintiff’s counsel suggests in conclusory fashion that defendants’ questions sought information about a “privileged communication.” (NYSCEF No. 67 at ¶ 25.) But counsel has not established that the necessary elements of the attorney-client privilege were satisfied; nor articulated what right of confidentiality shielded plaintiff from questions about their communication.

Therefore, the court held, “plaintiff has not shown that her counsel permissibly instructed her not to answer questions about their communication” and that plaintiff must answer those questions.

Sanctions

The court held that, while it agreed with defendants that many of plaintiff’s counsel’s objections, interjections, and instructions not to answer during the second deposition session were contrary to §§ 221.1 and 221.2 of the Uniform Rules for the Conduct of Depositions, it was “not persuaded that this conduct, although inappropriate, necessarily rose (or sank) to the level of warranting sanctions under § 130-1.1.”

It did, however, require plaintiff, under CPLR 3126, to pay $1,500 to defendants’ counsel to defray the cost of making the current motion.

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