While it is common practice for attorneys to prepare witnesses prior to depositions taken by their opponent, there are limitations on how much "coaching" attorneys can do during the deposition itself. There have been longstanding debates over whether counsel should be permitted to make objections during the deposition, instruct the witness not to answer, or interrupt the deposition to confer with the witness. While some courts permit some or all of these tactics under certain circumstances, others do not.
The Federal Rules of Civil Procedure 30(d) provide that:
(1) Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).
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(3) 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.
(4) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
According to the Advisory Committee Notes from the 1997 Amendments to the Federal Rules, paragraph (3) authorizes sanctions "not only when a deposition is unreasonably prolonged, but also when an attorney engages in other practices that improperly frustrate the fair examination of the deponent, such as making improper objections or giving directions not to answer prohibited by paragraph (1)." The comments stress that making excessive unnecessary objections, as well as refusal to agree on a fair apportionment of time for the deposition or a reasonable request for additional time to complete the deposition, may constitute sanctionable conduct. And, not surprisingly, at least some courts have recognized their inherent authority to sanction misconduct.1
In 2006, the New York State Uniform Court System adopted rules similar to the Federal Rules.2 These rules provide:
§ 221.1 Objections at Depositions
(a) No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR.
(b) Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.
§ 221.2 Refusal to Answer When Objection Is Made
A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefore. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition.
§ 221.3 Communication with the Deponent
An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.
These standards set the parameters for depositions in New York state courts. They aim to limit the situations in which attorneys stop depositions to instruct witnesses not to answer questions.3 Furthermore, these rules seek to bar attorneys from coaching witnesses by making lengthy objections in which they suggest an answer to the opponent's question.4 Specifically, attorneys are barred from making objections solely on the grounds of competence, relevance, or hearsay.5 However, they are permitted to instruct witnesses not to answer on the grounds of privilege, when the question delves into an area barred by a prior court order, or if the question is improper and answering it would cause "significant prejudice," provided that the attorney "clearly and succinctly" states the reasons for the intervention.6
In addition to their legal obligation, attorneys have an ethical obligation to follow these court rules. New York Rule 3.3(e) provides that "intentionally or habitually violat[ing] any established rule of procedure or of evidence . . . " is misconduct.
Federal courts have also taken various regulatory approaches to control communications between witnesses and attorneys during depositions.7 For example, Rule 30.6 of the Local Civil Rule of the Southern and Eastern Districts of New York provides that "[a]n attorney for a deponent shall not initiate a private conference with the deponent during the actual taking of a deposition, except for the purpose of determining whether a privilege should be asserted."8 This rule, however, is only effective in the Eastern District.9 Similarly, other districts make only private conferences initiated by an attorney impermissible.10 Lastly, courts that take the most liberal approach only prohibit attorney consultations with witnesses when a question is pending.11
Courts have taken a number of approaches through decisional law to address the problem of witness coaching during a deposition.12 Perhaps the lead, and most restrictive, case on this subject is Hall v. Clifton Precision.13 In Hall, the court held that once a deposition begins, a private conference between a witness and his attorney is not permissible, during the deposition itself or during a recess, unless the purpose of the conference is to decide whether to assert a privilege.14 This rule applies whether or not the private conference is initiated by the attorney or the witness.15 Furthermore, if a conference occurs to determine whether to assert a privilege, the conferring attorney must place on the record the fact that the conference occurred, the subject of the conference, and the decision reached regarding assertion of a privilege.16 The court reasoned that "[a] lawyer, of course, has the right, if not the duty, to prepare a client for a deposition. But once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth."17 The court further explained:
The underlying purpose of a deposition is to find out what a witness saw, heard, or did - what the witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness's own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness's words to mold a legally convenient record. It is the witness - not the lawyer - who is the witness. As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and also to make favorable and creative arguments of law. But the lawyer is not entitled to be creative with the facts. Rather, a lawyer must accept the facts as they develop.18
The court in Hall also held that a witness may not confer with counsel about a document shown to him during a deposition while questions are pending regarding that document.19 Furthermore, attorneys are "strictly prohibited from making any comments, either on or off the record, which might suggest or limit a witness's answer to an unobjectionable question."20 If a witness does not understand a question or needs further explanation, the witness should ask the deposing counsel for clarification.21
The U.S. District Court for the Western District of New York's Guidelines for Depositions, premised upon Hall, provide that "counsel and their witness/client shall not initiate or engage in private off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege."22
Other courts have refused to strictly adhere to Hall. For example, the court in In re Stratosphere Corp. Securities Litigation23 concluded that while it agrees with the Hall court's identification of the problem, it goes too far in its solution, and strict adherence to Hall could violate the witness's right to counsel.24 The court explained:
It is this Court's experience, at the bar and on the bench, that attorneys and clients regularly confer during trial and even during the client's testimony, while the court is in recess, be it mid morning or mid afternoon, the lunch recess, [or] the evening recess. The right to prepare a witness is not different before the questions begin than it is during (or after, since a witness may be recalled for rebuttal, etc., during trial). What this Court, and the Federal Rules of Procedure seek to prevent is coaching the witness by telling the witness what to say or how to answer a specific question. We all want the witness's answers, but not at the sacrifice of his or her right to the assistance of counsel.
Furthermore, "consultation between lawyers and clients cannot be neatly divided into discussions about 'testimony' and those about 'other' matters." Mudd v. United States, 255 U.S. App. D.C. 78, 798 F.2d 1509, 1512 (D.C. Cir. 1986). To deny a client any right to confer with his or her counsel about anything, once the client has been sworn to testify, and further to subject such a person to unfettered inquiry into anything which may have been discussed with the client's attorney, all in the name of compliance to the rules, is a position this Court declines to take.25
In light of this analysis, the court held that it would not preclude an attorney, during a recess that he did not request, from conferring with his client.26 As long as attorneys do not demand a break in the questioning or demand a break between a question and answer, the court was confident that "the search for truth [would] adequately prevail."27
Other courts have agreed with In re Stratosphere Corp. Securities Litigation and adopted a modified, less stringent form of Hall.28
Furthermore, courts have found impermissible witness coaching in situations where attorneys instructed witnesses not to answer questions, suggested answers to a witness, repeatedly objected to the form of questions, made lengthy coaching objections which interrupted the flow of the deposition, made vexatious requests for clarification, and left the deposition room while questions were pending.29 One court even went so far as to justify restrictions on attorney-witness communications during depositions by stating that civil litigants or witnesses, as opposed to criminal defendants, have no constitutional right to advice from counsel during a short recess.30
Abbott Laboratories31 illustrates at least one court's response to inappropriate deposition techniques. The court first analyzed defense counsel's deposition objections to the "form" of the questions asked by plaintiff's counsel. After noting the prolific reliance on this objection (the court calculated that it appeared "on roughly 50% of the pages" of the depositions in issue), the court dissected the range of use of this objection, which went from quibbles with counsel's word choice (for no apparent purpose other than to coach the witness to a desired answer), to "voice absurdly hyper-technical truths," to assert innovative objection grounds ("a non sequitur"). But the bulk of the court's criticism of counsel's use of the "form" objection was her failure to provide any explanation for that form objection. As the court noted, "[r]equiring lawyer to state the basis for their objections is not the same thing as requiring 'speaking objections' in which lawyers amplify or argue the basis for their objections." ____ at _____.32
The Abbott Laboratories court next criticized counsel's repeated interjections ,which prompted specific witness answers. For example, objections were regularly made to appropriate questions claiming they were "vague," "speculative" or "ambiguous," with those objections often followed by the witness' request for clarification or refusal to answer. As the court noted, "I find it inconceivable that the witness. . . would so regularly request clarification were they not tipped-off by counsel's objections."
The court went on to observe:
These clarification-inducing objections are improper. Unless a question is truly so vague or ambiguous that the defending lawyer cannot possibly discern its subject matter, the defending lawyer may not suggest to the witness that the lawyer deems the question to be unclear. Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. The witness-not the lawyer-gets to decide whether he or she understands a particular question:
Only the witness knows whether she understands a question, and the witness has a duty to request clarification if needed. This duty is traditionally explained to the witness by the questioner before the deposition. If defending counsel feels that an answer evidences a failure to understand a question, this may be remedied on cross-examination.
Serrano, 2012 WL 28071, at *5; see also Hall, 150 F.R.D. at 528-29 ("If the witness does not understand the question, or needs some language further defined or some documents further explained, the witness can ask the deposing lawyer to clarify or further explain the question. After all, the lawyer who asked the question is in a better position to explain the question than is the witness's own lawyer." (footnote omitted)); Peter M. Panken & Mirande Valbrune, Enforcing the Prohibitions Against Coaching Deposition Witnesses, Prac. Litig., Sept. 2006, at 15, 16 ("It is improper for an attorney to interpret that the witness does not understand a question because the lawyer doesn't understand a question. And the lawyer certainly shouldn't suggest a response. If the witness needs clarification, the witness may ask the deposing lawyer for clarification. A lawyer's purported lack of understanding is not a proper reason to interrupt a deposition.").
Another tactic roundly criticized by the court was counsel's frequent refrain of "you can answer if you know." The court noted:
When a lawyer tells a witness to answer "if you know," it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question. For this reason, "[i]nstructions to a witness that they may answer a question 'if they know' or 'if they understand the question' are raw, unmitigated coaching, and are never appropriate." Serrano, 2012 WL 28071, at *5; see also Specht, 268 F.R.D. at 599 ("Mr. Fleming egregiously violated Rule 30(c)(2) by instructing Mr. Murphy not to answer a question because his answer would be a 'guess.'"); Oleson v. Kmart Corp., 175 F.R.D. 560, 567 (D. Kan. 1997) (noting that an attorney violated Rule 30 when he "interrupted [a] deposition in mid-question, objected to the assumption of facts by the witness, and advised the witness that he was not obligated to assume facts").
Finally, the court addressed counsel's efforts at reinterpreting or rephrasing posed questions, and in some instances providing the witness with additional information to consider in answering the questions, sometimes even providing the answer for the witness to then repeat. Needless to say, the court found all of these tactics inappropriate and allowing the lawyer to effectively commandeer the depositions.
In this particular case, the court imposed a unique sanction. The court ordered the offending practitioner to:
write and produce a training video in which Counsel or another in Counsel's firm, appears and explains the holding and rationale of this opinion and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. . . The lawyer in the video must state the video is being produced and distributed pursuant to a federal court's sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order.
The court required that access to the video be made available to each lawyer at the firm worldwide - more than 2,000 - who engages in state or federal litigation or who works in any practice group in which at least two of the lawyers have filed an appearance in any state or federal case in the United States.
If nothing else, Abbott's Laboratories reflects the courts growing frustration with improper witness coaching and deposition conduct.
A sidebar to this article is available here.