“A review of the transcript demonstrates that Grosso’s deposition was a waste of time.”
A fair reading of the facts set out in Phillips Auctioneers LLC v Grosso, 2024 NY Slip Op 33906 (N.Y. Sup. Ct., N.Y. Cty., Oct. 31, 2024), a contract dispute, suggests that both the witness and his attorney were determined to make the deposition as unpleasant and unproductive as possible. They succeeded spectacularly in these narrow objectives. According to the court, the witness was “incoherent,” “unresponsive,” and “uncooperative.” And the deposition came to an abrupt halt when the witness declared, “That was the last question.”
“While sanctions for unethical conduct during depositions are rare, sharp-elbowed behavior is increasingly disfavored. Guardrails inhibiting over-zealous advocacy are found throughout professional ethics codes leading courts, on at least two occasions, to suspend a lawyer’s license for unethical conduct during a deposition.”
Success at frustrating the plaintiff’s attempt to conduct a deposition ultimately proved pyrrhic in this instance. Not only did the trial court impose monetary sanctions for their obstructive behavior, it also:
- ordered that the witness’s next deposition take place in the court’s jury room;
- imposed a tight and unforgiving (i.e., terminating sanctions are on the table) pretrial discovery schedule;
- ordered that the witness submit all of his electronic equipment for forensic imaging;
- ordered that the witness provide a “Jackson affidavit” which, under New York practice, obliges the witness to explain in detail whatever information is known about documents that the witness claims are not in his possession or control; and
- gave a reading assignment, the New York Standards of Civility.
Fortunately for the wider legal community, the court’s opinion is a cook’s tour of most, if not all, of the modern rules governing attorney behavior during a deposition.
Here, in a nutshell, are all the ways defending counsel strayed from his ethical obligations during his client’s deposition:
- Engaging in dilatory tactics. The first deposition had been continued to a later date, but the witness’s attorney cancelled it on less than 24 hours’ notice, apparently because he believed the initial four hours of deposition time was “enough.” Under New York law, depositions can last seven hours. Following some email skirmishing, the deposition took place as scheduled.
- Refusing to provide a legal basis for objections. Attorneys are obliged to provide a legal basis for objections made during a deposition. Here, the attorney’s response to opposing counsel’s request for a legal basis – “No, I am not your law clerk.” – fell short of what is legally required.
- Failing to demonstrate professionalism and civility. The remark “No, I am not your law clerk” is also unprofessional and uncivil toward opposing counsel.
- Directing the witness not to answer proper questions. Under New York law, the only grounds for directing a witness not to answer questions during a deposition are to preserve a privilege, to comply with a prior court protective order, to protect the witness from a question that is “plainly improper.” Here, the defending attorney was objecting to lawful questions.
- Failing to prepare the witness to answer questions on foreseeable topics. The witness never conducted a search for documents requested by the plaintiff; in fact, he testified, “nobody ever told him he needed to collect documents.”
- Coaching the witness. The attorney engaged in impermissible speaking objections, the court found. “[C]oaching a witness was inappropriate making the deposition a waste of time.”
- Exhibiting disrespect toward opposing counsel. Attorneys are expected, the court said, to advise clients of lawful behavior during depositions and to make reasonable efforts to prevent clients from causing disorder or disruptions. Here, the court said, the attorney’s remark that a deposition question was “absurd” was disrespectful; moreover, it encouraged the witness to behave disrespectfully as well.
For monetary sanctions, the court ruled that the plaintiff was entitled to reimbursement of the first, unproductive deposition as well as the costs for preparing again for a second deposition, plus the costs for attorney time during the deposition. The court also ordered reimbursement for costs associated with the plaintiff’s motion for compelling discovery from the defendant, and costs associated with preparing for the defendant’s upcoming courthouse deposition – which the court remarked was duplicative effort necessary solely because of the witness’s and his attorney’s improper conduct.
While sanctions for unethical conduct during depositions are rare, sharp-elbowed behavior is increasingly disfavored. Guardrails inhibiting over-zealous advocacy are found throughout professional ethics codes leading courts, on at least two occasions, to suspend a lawyer’s license for unethical conduct during a deposition.
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