By Adrienne Brantley-Lomeli and Ogonna Brown
Deposition misconduct is far too often tolerated and accepted as part of the adversarial process. But deposition misconduct simply should not be tolerated, given the attendant expenses of depositions. Depositions are a key tool in a lawyers’ trial preparation. And while many lawyers have been taught effective techniques to elicit useful testimony, a trial lawyer should also know what behaviors to look for when facing deposition misconduct. Whether dealing with an evasive witness or a hostile lawyer, courts are not shying away from issuing sanctions orders for deposition misconduct. Indeed, in May of 2022, officials in the Eighth Judicial District Court, Clark County attempted to quell deposition misconduct by issuing the document “Administrative Order Regarding Deposition Behavior.” AO 22-08.
Under NRCP 37(a), if a party gives an evasive or incomplete answer, that party can be ordered to answer and could face sanctions for not doing so. This exposure to sanctions has been extended to attorneys as well.
The two most common issues of sanctionable deposition conduct are issues with a witness’s answer and counsel’s objections. A witness’s answers are sanctionable in instances where they 1) provide a non-responsive narrative; 2) make impertinent statements; 3) refuse to give estimates; or 4) feign lack of knowledge. Rapaport v. Soffer, No. 2:10-CV-935-MMD-RJJ, 2012 WL 6799742, at *7 (D. Nev. Dec. 31, 2012). Some of these answers may be acceptable under proper circumstances, but such answers, when not appropriate, cross the line into deposition misconduct. For instance, the court in Wausau Underwriters Ins. Co. v. Danfoss, LLC, held that the witness’s use of an outline during a deposition was not a “script”, and therefore did not rise to misconduct. 310 F.R.D. 683 (S.D. Fla. 2015). Similarly, the court in Jenkins v. Corizon Health Inc., found that a doctor’s statement that he did not think the “particular type of issue” the pre-trial detainee experienced had “changed in the last 30 year[s]” was not so non-responsive to the question to require sanctions. 584 F. Supp. 3d 1364, 1372 – 3 (S.D. Ga. 2022). What may seem to be evasive or non-responsive answers during a deposition may be brought on by the line of questioning.
Counsel’s actions may be sanctionable where counsel coaches the witness or continually lodges inappropriate objections. Coaching the witness may occur during breaks or through improper deposition objections. Coyote Springs Inv., LLC v. Eighth Jud. Dist. Ct. of State ex rel. Cnty. of Clark, 131 Nev. 140, 146, 347 P.3d 267, 271 (2015). And in the age of remote depositions, counsel should be on the lookout for other types of misconduct. For example, in Barksdale Sch. Portraits, LLC v. Williams, the United States District Court for the District of Massachusetts issued sanctions based on the conduct of defendant and defense counsel during remote video deposition. 339 F.R.D. 341 (D. Mass. 2021). There, while the defendant and defense counsel were seated in the same room and wearing face masks, citing “COVID rules,” defense counsel surreptitiously provided answers to defendant. Id. at 344. The court determined that by exploiting the remote nature of the deposition to improperly assist defendant, defense counsel frustrated plaintiffs’ rights to fair examination of defendant. Id. at 345. As a result, the court warned that counsel’s conduct had the effect of sowing seeds of doubt in minds of litigators and judges as to the effectiveness of remote deposition proceedings. Id.
If misconduct occurs during a deposition, it is important to make a record during the deposition using the proper objections. Counsel should first attempt to resolve any issue without court intervention. Use of the “Administrative Order Regarding Deposition Behavior” may be helpful in reminding counsel or an unruly witness of appropriate behavior. Counsel should also object on the record, in a concise and nonargumentative way, and identify the specific inappropriate behavior or line of questioning. One option is for counsel to contact chambers or the discovery commissioner to immediately address the improper behavior during the deposition. Counsel should preserve the misconduct issue on the record and after the deposition and seek a remedy under the rules of civil procedure and the local rules regarding discovery disputes.
Counsel has the right to a fair examination. And as the discovery commissioners warned “gamesmanship has no place in depositions; it will result in sanctions.” AO 22-08. Understanding when misconduct occurs and the remedies to which a party is entitled are fundamental to protecting that right.
About the authors
Adrienne Brantley-Lomeli is a litigation attorney at McDonald Carano. Her state and federal court experience focuses on commercial litigation, including commercial finance litigation, bankruptcy matters, and appellate work. Adrienne’s bankruptcy practice includes creditors’ rights, secured party representation, and representing bankruptcy trustees and state court receivers.
Ogonna Brown is a partner at Lewis Roca in the litigation and bankruptcy and creditors’ rights practice groups. Ogonna focuses her practice on creditors’ rights, secured party representation, commercial litigation, and bankruptcy litigation. She has extensive experience representing bankruptcy trustees and state court receivers.
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This article was originally published in the Communiqué (May. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-may-2024.
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