Monday, March 23, 2009

Cause of Action for conduct during a deposition?

There are many cases available to illustrate issues of misconduct during discovery in civil cases - particularly during depositions. The New Jersey Appellate Court has just added a new one with a twist. In this particular case, the plaintiff in a wrongful death case filed a complaint against the attorney for the defendant to recover for damages allegedly caused by the attorney during the deposition of the plaintiff. The attorney taking the deposition represented a doctor whose conduct the plaintiff alleged resulted in the plaintiff's daughter's death. During the deposition, the father's lawyer objected to a certain line of questions by the doctor's lawyer and threatened to end the deposition. This type of threat, by the way, has been held to be misconduct by other courts but it was not questioned here. After that exchange the deposition continued without incident.

Typically, these types of cases involve the court evaluating the conduct of the lawyer in order to decide whether to impose sanctions. What is new about this issue here is that the plaintiff then turned around and sued the defendant's lawyer. The suit contended that the deposition conduct was "outrageous and inhumane" and was "so reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency."

The court, however, held there was no basis for the claim. The lawyer had the right to, in fact had a duty to, closely question and challenge the witness. The opinion is available here.

I agree with the decision of the court. As unpleasant as it can be, witnesses have to understand that lawyers have a good deal of leeway while conducting a deposition and it is the witness' lawyers duty to prepare him or her for it. If anything, I think the conduct of the lawyer for the witness in this case was more questionable. He had no right to threaten to end the deposition the way he did and if he had ended it, the defendant's lawyer would have been able to support a claim for sanctions and costs.

Unfortunately, many depositions have become shows for lawyers to do a lot of grandstanding and yelling and courts are inconsistent in the way they try to regulate them. Here is an example that has been floating over the internet for years:

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