Getting What You Need to Win
Depositions are the key to gathering the evidence which will enable you to prevail at trial. This outline will discuss how to get the most out of your depositions and will focus on questioning strategies, a review of the recent changes to the Federal Rules of Civil Procedure governing depositions, and ways to deal with the adversary who interferes.
Strategies for Effective Questioning
In an employment discrimination case, where the motivation of the decision-maker is usually the central issue in dispute, depositions are key to establishing the facts which will enable the plaintiff to prevail. This can only be done with thorough advance preparation of an outline to guide the deposition and focused questioning of the deponent. While the deponent’s true motivations are often hidden, here are a few strategies which can be used to gather evidence in support of the plaintiff’s claims.
- Focus on the decision-making process. Identify all the persons involved in making the decision to take the adverse actions in question. Identify all of the meetings, phone calls and “hallway chats” that the decision-makers were part of. Elicit exactly what was said and done at each of these events. Find out if notes exist. In many cases, when more than one person was involved, the testimony about what happened at each of these events will differ markedly. The differences may be due to dissembling, differing perceptions of the same event, or the fallibility of human memory. In any case, the more that defendant’s employees contradict each other, the better for your case.
- Identify those who influenced the decision-makers. Even if the decision-makers harbored no bias, the employer will be liable for discrimination if the decision was tainted by discriminatory motive. See, e.g.,Wells v. New Cherokee Corp., 58 F.3d 233, 238 (6th Cir. 1995). Thus, if unbiased decision-makers relied on reports by superiors, peers, or subordinates which were tainted by bias, the company will be liable. This broadens the field of people to pursue in looking for discriminatory animus.
- Probe the rationale for the adverse action. Identify and probe each of the reasons for the adverse action taken against the plaintiff. Oftentimes the story will “evolve” from what was initially told the plaintiff. Be prepared to question the witness on documents contemporaneously created that are at odds with the deposition version.
- Look for comparators treated more favorably. Identify similarly situated employees (comparators) who had the same problems as plaintiff but were not subjected to adverse action.
- Question on the EEO policy of the Company. Surprisingly, many employees cannot articulate the policy with any degree of accuracy. Posit the facts alleged in the complaint and see if the witness will admit that such conduct would violate the policy.
- Establish that the witness knew the plaintiff was in a protected class. While this is obvious for race and gender, it can become a major hurdle in cases of disability, sexual orientation, religion and age.
- Pursue a line of questioning that probes general evidence of bias. In addition to asking about the biased remarks or activities that your client has presumably reported to you, ask every witness whether he or she has ever made any biased remarks (including jokes) and whether biased remarks by others in the company have been overheard.
- Find out if key witnesses have talked to each other. Find out what discussions the key witnesses have had with each other after suit was started and what deposition transcripts they have reviewed prior to their deposition. This may be useful to you at trial if the witnesses have remarkably similar stories. In addition, it will send a message that the witnesses had better not in the future confer to get their stories straight.
The New Federal Rules Concerning Depositions†
Effective December 1, 2000, the Federal Rules of Civil Procedure were amended in several ways which affect the conduct of depositions.†
The most important changes are:
- A party must obtain leave of court to take more than 10 depositions unless the parties so stipulate. Fed. R. Civ. P. 30(a)(2)(A).
- No deposition may last more than 7 hours unless authorized by the court or stipulated by the parties. Fed. R. Civ. P. 30(d)(2).
The new rules continue the language of the 1993 amendment that : “If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.” Fed. R. Civ. P. 30(d)(3).
The new rules also continue the language that objections must be stated “concisely and in a non-argumentative and non-suggestive manner.” Instructions not to answer are limited to privilege, enforcing a limitation imposed by the court, or to present a motion to limit or cease the deposition because it is being conducted in bad faith or to annoy, embarrass or oppress. Fed. R. Civ. P. 30(d)(1) and 30(d)(4).
To deal effectively with these changes, the plaintiff’s attorney must be ready to negotiate over process. While it may be difficult to complete the deposition of the key decision-maker in seven hours, no doubt defense counsel feels the same way about completing the plaintiff’s deposition. A deal can be struck. While plaintiff’s counsel may need more than ten depositions, defense counsel may consent if plaintiff’s counsel agrees not to contact non-managerial employees of defendant whose interviews may be permitted by ethical rules. Where these issues are disputed, raise them with the judge at the Rule 16 conference to avoid a later application to the court.
It is important to read the Advisory Committee notes to the new rules on depositions which contain useful ideas for understanding and working within the new limits. For example, the notes suggest sending lengthy documents on which the witness will be questioned to the witness in advance of the deposition (although be selective so you don’t give up the element of surprise on any key documents). If you have done so, you will be in a better position to argue to the court that you need more time for a particular witness.
Dealing with the Adversary Who Interferes or Harasses
While most defense counsel conduct themselves professionally at depositions, there are those who cross the line and act improperly. In order to represent the plaintiff effectively, you must not permit unfair tactics to affect the conduct of depositions.
There are various tactics that may be employed to keep you from getting the answers you need from the witness:
- Defense counsel may talk his or her way through the deposition. Continual rephrasing of your questions, queries suggesting the ambiguity of questions which are not ambiguous, reminders such as “if you remember” and other defense commentary are all ways to coach the witness and to keep you from making a clean record.
- Defense counsel may be belligerent and intimidating. Counsel may continually criticize your questions as improper and misleading, may resort to yelling and tirades, and may otherwise attempt to cow you into not getting the evidence you need.
- Defense counsel may repeatedly give instructions not to answer the question. Oftentimes these instructions will have nothing to do with privilege, but will be purportedly based on the “impropriety” of your questions.
Similarly, when you are defending the deposition of the plaintiff, defense counsel might harass, belittle, embarrass or otherwise attempt to intimidate the plaintiff. This conduct may be strategic or may result from counsel’s anger that plaintiff had the temerity to bring the claims.
All of the foregoing tactics are improper and should be dealt with firmly. An escalating response is recommended.
First, refer to Fed. R. Civ. P. 30(d) and summarize generally the import of the rules. Do this on the record.
Second, take out the Federal Rules of Civil Procedure and read the relevant sections to your adversary or ask that he or she read the relevant sections. Note on the record that you have done so.
Third, threaten to call the court for an immediate ruling. Counsel may relent when it is clear that you are looking up the telephone number.
Fourth, call the court for a ruling. If the judge is unavailable, and does not offer to get back to you, discontinue the deposition and proceed with a motion or other application to the court. If the issue is an instruction not to answer, and counsel is not otherwise interfering, you may wish to complete the deposition and then get a ruling on the disputed points.
There are multiple bases for a court’s authority to impose sanctions upon counsel who utilize improper tactics or demonstrate gross misconduct during a deposition.
A court may generally award sanctions under §1927, which provides “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs.” 28 U.S.C. §1927. Codified to deter unnecessary delay in litigation, awards made under §1927 are proper when an attorney’s behavior is so egregious and without merit that it indicates bad faith.
Additionally, sanctions may be awarded pursuant to the court’s inherent power, “born of the practical necessity that courts be able to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Revson v. Cinque & Cinque, 221 F.3d 71,78 (2d Cir. 2000). Sanctions are also explicitly authorized under Fed R. Civ. P. 30(d)(3) and under Fed. R. Civ. P. 37.
“A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under 30(d)(4).” Fed.R.Civ.P. 30(d)(1). Thus counsel cannot rely on “generalized assertions of attorney-client privilege but must make reference to specific privileged communications that would be revealed.” Bristol-Meyers Squib Co. v. Rhone-Poulenc Rorer, Inc., 1998 U.S. Dist. LEXIS 12, *12 (S.D.N.Y. January 6, 1998) (requiring defendant to make the witnesses available for resumed deposition at its cost and to pay the plaintiff’s cost of bringing the motion.)
Attorneys may lawfully invoke privilege during a deposition under the guidelines of the Federal Rules, however they may not “pepper the proceeding with interruptions and directions not to answer.” Learning International v. Competence Assurance Systems Inc., 1990 U.S. Dist. LEXIS 16810 (S.D.N.Y. December 13, 1990) by repeatedly interjecting such comments as “answer if you know” or “if you remember,” was sanctioned with an admonishment from the court and the requirement to pay for the cost of the deposition. City of New York v. Coastal Oil New York, Inc., 2000 U.S. Dist. LEXIS 746 (S.D.N.Y. January 28, 2000)
In another instance of sanctionable attorney conduct, counsel improperly conferred with his client, who was giving deposition testimony, out of earshot of opposing counsel. Morales v. Zondo, Inc., 2001 U.S. Dist. LEXIS 5679 (S.D.N.Y. May 4, 2001) The court held that there is “no general right to confer during a deposition except for the purpose of determining whether a privilege shall be asserted.” In addition, the court found defense counsel failed to comply with his duty to deal “fairly and sincerely” with the court and opposing counsel, which in turn produced an unnecessary delay and frustrated opposing counsel’s deposition. Defense counsel’s egregious behavior during the deposition included repeated interruptions to questioning (he appeared on 216 of 241 pages of the transcript with statements other than objections to form or a request to read back a question). Relying on Rule 30(d)(2), §1927, and the inherent power of the Court, defendant’s counsel was required to pay: the cost of the deposition transcript, $1,500 to the Clerk of the Court, and plaintiff’s attorney’s hourly rate multiplied by the number of hours spent at the deposition. Id.
Despite a proclaimed hesitancy in imposing sanctions, the court found them appropriate due to the bad-faith litigation conduct of defense counsel in SS&J Morris, Inc. v. Appel Corp., 2000 U.S. Dist. LEXIS 10381 (S.D.N.Y. July 26, 2000). The court found that defense counsel invoked Rule 30(d) in bad faith in order to excuse his clients non-responsive answers. Additionally, defense counsel repeatedly made unnecessary objections, gave instructions to the deponent not to answer proper questions, and made interruptions and colloquies throughout the deposition SS & J is noteworthy in that the deponent/client’s behavior, in addition to his counsel’s, was found to be deliberately evasive and improper. In addition to threatening to walk out of the deposition, his repetitive “I don’t recall” answers were found to be “insincere and deliberately evasive or incomplete,” by the judge. Thus given his behavior, and in light of the client’s familiarity with the legal system and overall sophistication, the judge imposed sanctions on the attorney and client jointly and severally, including costs and attorney’s fees.
Sometimes behavior of counsel is obstructive, but lacks bad faith and thereby narrowly avoids being sanctioned. Phillips v. Manufacturers Hanover Trust Co., 1994 U.S. Dist. LEXIS 3748 (S.D.N.Y. March 29, 1994) Where counsel objected or interjected 49 times in an hour and a half deposition, and where at least 60% of the transcript pages contained the interruptions, the court found failure to comply with Rule 30(d)(1) requiring counsel to concisely state their reasons for an objection. Though the court noted counsel’s conduct was “inappropriate and at times even obnoxious,” it did not meet the requirements for sanctionable conduct under the court’s inherent power or §1927. The repeated interruptions did not completely destroy the deposition, and there was no evidence of bad faith. The court also denied sanctions under F.R.C.P. 30, based primarily on the newness of the amendment at the time the claim was before the court, but put counsel on notice of future sanctions should she engage in a repeat performance. Id.
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†The Federal Rules of Civil Procedure have been amended since this article was written. Do not rely on the descriptions of them herein, per our website disclaimer.