Employment Law Daily Signaling to client how to answer depo questions improper, but so is opposing counsel’s rudeness
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Wednesday, March 9, 2016

Signaling to client how to answer depo questions improper, but so is opposing counsel’s rudeness

By Lorene D. Park, J.D. Noting that once a witness goes into deposition, the witness is on his or her own; to allow “strategic interruptions, suggestions, statements, and arguments of counsel” would frustrate the purpose of a deposition, ruled a federal district court in Pennsylvania, finding that further inappropriate behavior by an employee’s attorney could result in sanctions. Defense counsel was entitled to question her on the whisperings of her attorney and the notes he showed her during her prematurely ended deposition, neither of which were privileged. Defense counsel also was cautioned to avoid rude and obnoxious behavior toward the employee once the deposition had resumed (Vnuk v. Berwick Hospital Co., March 2, 2016, Mariani, R.). In a suit by a nurse who claimed that she was sexually harassed by a doctor, and that he and the hospital retaliated against her when she complained, the attorneys for both parties sought guidance from the court on proper conduct during depositions. Coaching client. According to defense counsel, the employee’s attorney engaged in multiple improprieties during the employee’s deposition. He allegedly coached her during breaks, and this persisted during questions, when he showed her something he wrote on a pad of paper and said: “here, here and here.” He whispered to her again later. Each time, defense counsel asked her the subject of the conversation and her attorney told her not to respond, even after defense counsel provided a copy of a case stating that such attorney-client communications are not privileged. Hint, hint. Defense counsel also complained that her attorney made “long speaking objections which appeared designed to influence his client’s testimony,” including one in which he questioned defense counsel on why he was asking about a chart summarizing her time records. Thereafter, the employee refused to respond to questions about the document for a lengthy period, though she finally relented. The deposition ended, said defense counsel, when her attorney, “visibly frustrated with his client’s responses regarding an exhibit stated, on the record: ‘we are almost done and we will get to a natural break point.’ I then questioned [the employee] as to whether she was capable of continuing the deposition ... to which she said she was not.” Relief requested. Based on the foregoing, defense counsel requested a conference with the court before the employee’s deposition was set to resume. He requested an order as to whether the employee could be questioned about conversations that she had with her attorney during the deposition and whether her attorney should be required to produce the note he shared with her during the deposition. He also sought $370 in attorneys’ fees related to this dispute. Employee “brutalized” by defense counsel? The employee’s attorney disavowed the claims of coaching and blamed the deposition’s derailment on defense counsel, whom he alleged spent most of the deposition “brutalizing” the employee on subjects that were immaterial and “designed solely to harass her.” Questions included whether she had been unfaithful to her husband; whether she viewed pornography on Twitter; and whether she had judgments for unpaid bills. Defense counsel allegedly was extremely rude to the employee, “mocked” her, and “rolled his eyes” at her. She became “hysterical” and was unable to continue the deposition, asserted her attorney. As for the note pad, he argued that there was nothing improper and he was merely showing her how he planned to “protect her from such abusive questioning at trial.” Witness and lawyer cannot “confer at their pleasure” in deposition. Stepping in, the court explained that, under Hall v. Clifton Precision, a lawyer has a duty to prepare a client for deposition, but “once the deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth. Under Rule 30(c), depositions generally are to be conducted under the same testimonial rules as are trials.” A witness and her lawyer “are not permitted to confer at their pleasure” during the testimony. Likewise, private conferences are not allowed in depositions. They appear to obstruct the truth and allow a witness to hear a question, ask a lawyer, and then parrot the response. The same is true if a witness is shown a document; opposing counsel is entitled to have the witness, not her attorney, answer questions about it. The only exception is that a private conference between witness and attorney is allowed for the purpose of deciding whether to assert a privilege. Employee’s attorney was “inappropriate, unprofessional.” With this in mind, it was clear the employee’s attorney was prohibited from speaking with her during the deposition unless it was about asserting a privilege. His decision to whisper to her, show her notes, or speak to her about the deposition during breaks was “wholly inappropriate, unprofessional, and—if it occurs again—sanctionable,” wrote the court. Consequently, defense counsel can inquire from her as to the content of those communications and may examine the note she was shown during her testimony. The court also found the long speaking objections inappropriate for the same reasons. Though technically an objection, it still signaled the deponent as to the answer preferred by the attorney. However, defense counsel was not entitled to the requested attorneys’ fees. Defense counsel warned against rudeness. With respect to the alleged obnoxious behavior by defense counsel, the court noted that the attorneys must maintain professionalism, honesty, and integrity. Any attempt to submit a deponent to abusive treatment might be grounds for sanctions.

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