What Can Happen When Lawyers Over Delegate e-Discovery Preservation and Search to a Client, and Three Kinds of “Ethically Challenged” Lawyers: “Slimy Weasels,” “Gutless,” and “Clueless”

September 21, 2014
Sergeant Schultz of Hogan's Heros

“I see nothing, NOTHING!” Sergeant Schultz

Bad things tend to happen when lawyers delegate e-discovery responsibility to their clients. As all informed lawyers know, lawyers have a duty to actively supervise their client’s preservation. They cannot just turn a blind eye; just send out written notices and forget it. Lawyers have an even higher duty to manage discovery, including search and production of electronic evidence. They cannot just turn e-discovery over to a client and then sign the response to the request for production. The only possible exception proves the rule. If a client has in-house legal counsel, and if they appear of record in the case, and if the in-house counsel signs the discovery response, then, and only then, is outside counsel (somewhat) off the hook. Then they can lay back, a little bit, but, trust me, this almost never happens.

To see a few of the bad things that can happen when lawyers over delegate e-discovery, you have only to look at a new district court opinion in Ohio. Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122 (S.D. Ohio July 1, 2014) (2014 WL 2987051 ). Severe sanctions were entered against the defendant because its lawyers were too laid back. The attorneys were personally sanctioned too, and ordered to pay the other side’s associated fees and costs.

The attorneys were sanctioned because they did not follow one of the cardinal rules of attorney-client relations in e-discovery, the one I call the Ronald Reagan Rule, as it is based on his famous remark concerning the nuclear arms treaty with the USSR: Trust but verify

The sanctioned attorneys in Brown trusted their client’s representations to them that they had fully preserved, that they had searched for the evidence. Do not get me wrong. There is nothing wrong with trusting your client, and that is not why they were sanctioned. They were sanctioned because they failed to go on to verify. Instead, they just accepted everything they were told with an uncritical eye. According to the author of the Brown opinion, U.S. Magistrate Judge Terence P. Kemp:

… significant problems arose in this case for one overriding reason: counsel fell far short of their obligation to examine critically the information which Tellermate [their client] gave them about the existence and availability of documents requested by the Browns. As a result, they did not produce documents in a timely fashion, made unfounded arguments about their ability and obligation to do so, caused the Browns to file discovery motions to address these issues, and, eventually, produced a key set of documents which were never subject to proper preservation. The question here is not whether this all occurred – clearly, it did – but why it occurred, and what, in fairness, the Court needs to do to address the situation which Tellermate and its attorneys have created.

Id. at pgs. 2-3 (emphasis added).

What is the Worst Kind of Lawyer?

slimy_weasel3Taking reasonable steps to verify can be a sticky situation for some lawyers. This is especially true for ethically challenged lawyers. In my experience lawyers like this generally come in three different varieties, all repugnant. Sometimes the lawyers just do not care about ethics. They are the slimy weasels among us. They can be more difficult to detect than you might think. They sometimes talk the talk, but never walk it, especially when the judge is not looking, or they think they can get away with it. I have run into many slimy weasel lawyers over the years, but still, I like to think they are rare.

cowardOther lawyers actually care about ethics. They know what they are doing is probably wrong, and it bothers them, at least somewhat. They understand their ethical duties, they also understand Rule 26(g), Federal Rules of Civil Procedure, but they just do not have the guts to fulfill their duties. They know its is wrong to simply trust the client’s response of no, we do not have that, but they do it anyway. They are gutless lawyers.

Often the gutless suffer from a combination of weak moral fibre and pocketbook pressures. They lack the economic independence to do the right thing. This is especially true in smaller law firms that are dependent on only a few clients to survive, or in siloed lawyers in a big firm without proper management. Such gutless lawyers may succumb to client pressures to save on fees and just let the client handle e-discovery. I have some empathy for such cowardly lawyers, but no respect. They often are very successful; almost as successful as the slimy weasels types that do not care at all about ethics.

ScarecrowThere is a third kind of lawyer, the ones who do not even know that they have a personal duty as an officer of the court to supervise discovery. They do not know that they have a personal duty in litigation to make reasonable, good faith efforts to try to ensure that evidence is properly preserved and produced. They are clueless lawyers. There are way too many of these brainless scarecrows in our profession.

I do not know which attorneys are worse. The clueless ones who are blissfully ignorant and do not even know that they are breaking bad by total reliance on their clients? Or the ones who know and do it anyway? Among the ones who know better, I am not sure who is worse either. Is it the slimy weasels who put all ethics aside when it comes to discovery, and are not too troubled about it. Or, is it the gutless lawyers, who know better, and do it anyway out of weak moral fortitude, usually amplified by economic pressures. All three of these lawyer types are dangerous, not only to themselves, and their clients, but to the whole legal system. So what do you think? Please fill out the online poll below and tell us which kind of lawyer you think is the worst.

 

I will not tell you how I voted, but I will share my personal message to each of the three types. There are not many slimy weasels who read my blog, but I suspect there may be a few. Be warned. I do not care how powerful and protected you think you are. If I sniff you out, I will come after you. I fear you not. I will expose you and show no mercy. I will defeat you. But, after the hearing, I will share a drink with some of you. Others I will avoid like the plague. Evil comes in many flavors and degrees too. Some slimy weasel lawyers are charming social engineers, and not all bad. The admissions they sometimes make to try to gain your trust can be especially interesting. I protect the confidentiality of their off-the-record comments, even though I know they would never protect mine. Those are the rules of the road in dancing with the devil.

The-devil-s-advocate

As to the gutless, and I am pretty sure that a few of my readers fall into that category, although not many. To you I say: grow a spine. Find your inner courage. You cannot take money and things with you when you die. So what if you fail financially? So what if you are not a big success? It is better to sleep well. Do the right thing and you will never regret it. Your family will not starve. Your children will respect you. You will be proud to have them follow in your footsteps, not ashamed. I will not have drinks with gutless lawyers.

As to the clueless, and none of my readers by definition fall into that category, but I have a message for you nonetheless: wake up, your days are numbered. There are at least three kinds of clueless lawyers and my attitude towards each is different. The first kind is so full of themselves that they have no idea they are clueless. I will not have drinks with these egomaniacs. The second type has some idea that they may need to learn more about e-discovery. They may be clueless, but they are starting to realize it. I will share drinks with them. Indeed I will try very hard to awaken them from their ethically challenged slumber. The third kind is like the first, except that they know they are clueless and they are proud of it. They brag about not knowing how to use a computer. I will not have drinks with them. Indeed, I will attack them and their stone walls almost as vigorously as the weasels.

Judges Dislike the Clueless, Gutless, and Slimy Weasels

Judges dislike all three kinds of ethically challenged lawyers. That is why I was not surprised by Judge Kemp’s sanction in Brown of both the defendant and their attorneys. (By the way, I know nothing about defense counsel in this case and have no idea which category, if any, they fall into.) Here is how Judge Kemp begins his 47 page opinion.

There may have been a time in the courts of this country when building stone walls in response to discovery requests, hiding both the information sought and even the facts about its existence, was the norm (although never the proper course of action). Those days have passed. Discovery is, under the Federal Rules of Civil Procedure, intended to be a transparent process. Parties may still resist producing information if it is not relevant, or if it is privileged, or if the burden of producing it outweighs its value. But they may not, by directly misrepresenting the facts about what information they have either possession of or access to, shield documents from discovery by (1) stating falsely, and with reckless disregard for the truth, that there are no more documents, responsive or not, to be produced; or (2) that they cannot obtain access to responsive documents even if they wished to do so. Because that is the essence of what occurred during discovery in this case, the Court has an obligation to right that wrong, and will do so in the form of sanctions authorized by Fed. R. Civ. P. 37.

Take these words to heart. Make all of the attorneys in your firm read them. There are probably a few old school types in your firm where you should post the quote on their office wall, no matter which type they are.

Brown v. Tellermate Holdings Ltd.

Judge_KempThe opinion in Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122 (S.D. Ohio July 1, 2014) (2014 WL 2987051) by U.S. Magistrate Judge Terence Kemp in Columbus, Ohio, makes it very clear that attorneys are obligated to verify what clients tell them about ESI. Bottom line – the court held that defense counsel in this single plaintiff, age discrimination case:

… had an obligation to do more than issue a general directive to their client to preserve documents which may be relevant to the case. Rather, counsel had an affirmative obligation to speak to the key players at [the defendant] so that counsel and client together could identify, preserve, and search the sources of discoverable information.

Id. at pg. 35.

In Brown the defense counsel relied on representations from their client regarding the existence of performance data within a www.salesforce.com database and the client’s ability to print summary reports. The client’s representations were incorrect and, according to the court, had counsel properly scrutinized the client’s representations, they would have uncovered the inaccuracies.

As mentioned, both defendant and its counsel were sanctioned. The defendant was precluded from using any evidence that would tend to show that the plaintiffs were terminated for performance-related reasons. This is a very serious sanction, which is, in some ways, much worse than an adverse inference instruction. In addition, both the defendant and its counsel were ordered to jointly reimburse plaintiffs the fees and costs they incurred in filing and prosecuting multiple motions to compel various forms of discovery. I hope it is a big number.

The essence of the mistake made by defense counsel in Brown was to trust, but not verify. They simply accepted their client’s statements. They failed to do their own due diligence. Defense counsel aggravated their mistake by a series of over aggressive discovery responses and argumentative positions, including such things as over-designation of AEO confidentiality, a document dump, failure to timely log privileged ESI withheld, and refusal to disclose search methods used.

The missteps of defense counsel are outlined in meticulous detail in this 47 page opinion by Judge Terence Kemp. In addition to the great quotes above, I bring the following quotes to your attention. Still, I urge you to read the whole opinion, and more importantly, to remember its lessons the next time a client does not want you to spend the time and money to do your job and verify what the client says. This opinion is a reminder for all of us to exercise our own due diligence and, at the same time, to cooperate in accord with your professional duties. An unsophisticated client might not always appreciate that approach, but, it is in their best interests, and besides, as lawyers and officers of the court, we have no choice.

[when e-discovery is involved] Counsel still have a duty (perhaps even a heightened duty) to cooperate in the discovery process; to be transparent about what information exists, how it is maintained, and whether and how it can be retrieved; and, above all, to exercise sufficient diligence (even when venturing into unfamiliar territory like ESI) to ensure that all representations made to opposing parties and to the Court are truthful and are based upon a reasonable investigation of the facts.

 Id. at Pg. 3.

As this Opinion and Order will explain, Tellermate’s counsel:

– failed to uncover even the most basic information about an electronically-stored database of information (the “salesforce.com” database);

– as a direct result of that failure, took no steps to preserve the integrity of the information in that database;

– failed to learn of the existence of certain documents about a prior age discrimination charge (the “Frank Mecka matter”) until almost a year after they were requested;

– and, as a result of these failures, made statements to opposing counsel and in oral and written submissions to the Court which were false and misleading, and which had the effect of hampering the Browns’ ability to pursue discovery in a timely and cost-efficient manner (as well as the Court’s ability to resolve this case in the same way).

These are serious matters, and the Court does not reach either its factual or its legal conclusions in this case lightly.

Id. at pg. 4.

In addition to the idea that discovery is broad and is designed to permit parties to obtain enough evidence either to prove their claims or disprove the opposing party’s claim, discovery under the Federal Rules of Civil Procedure has been designed to be a collaborative process. As one Court observed,

It cannot seriously be disputed that compliance with the “spirit and purposes” of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357-58 (D. Md. 2008). Such a collaborative approach is completely consistent with a lawyer’s duty to represent his or her client zealously. See Ruiz-Bueno v. Scott, 2013 WL 6055402, *4 (S.D. Ohio Nov. 15, 2013). It also reflects a duty owed to the court system and the litigation process.

Id. at pgs. 28-29. Also see: Losey, R. Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.).

Tellermate, as an entity, knew that every statement it made about its control over, and ability to produce, the salesforce.com records was not true when it was made. It had employees who could have said so – including its salesforce.com administrators – had they simply been asked. Its representations were illogical and were directly contradicted by the Browns, who worked for Tellermate, had salesforce.com accounts, and knew that Tellermate could access those accounts and the information in them. And yet Tellermate’s counsel made these untrue statements repeatedly, in emails, letters, briefs, and during informal conferences with the Court, over a period of months, relenting only when the Court decided that it did not believe what they were saying. This type of behavior violated what has been referred to as “the most fundamental responsibility” of those engaged in discovery, which is “to provide honest, truthful answers in the first place and to supplement or correct a previous disclosure when a party learns that its earlier disclosure was incomplete or incorrect.” Lebron v. Powell, 217 F.R.D. 72, 76 (D.D.C. 2003). “The discovery process created by the Federal Rules of Civil Procedure is premised on the belief or, to be more accurate, requirement that parties who engage in it will truthfully answer their opponents’ discovery requests and  consistently correct and supplement their initial responses.” Id. at 78. That did not happen here.

Id. at pg. 31.

But it is not fair to place the entire blame on Tellermate, even if it must shoulder the ultimate responsibility for not telling counsel what, collectively, it knew or should have known to be the truth about its ability to produce the salesforce.com information. As this Court said in Bratka, in the language quoted above at page 3, counsel cannot simply take a client’s representations about such matters at face value. After all, Rule 26(g) requires counsel to sign discovery responses and to certify their accuracy based on “a reasonable inquiry” into the facts. And as Judge Graham (who is, coincidentally, the District Judge presiding over this case as well, and whose views on the obligations of counsel were certainly available to Ms. O’Neil and Mr. Reich), said in Bratka, 164 F.R.D. at 461:

The Court expects that any trial attorney appearing as counsel of record in this Court who receives a request for production of documents in a case such as this will formulate a plan of action which will ensure full and fair compliance with the request. Such a plan would include communicating with the client to identify the persons having responsibility for the matters which are the subject of the discovery request and all employees likely to have been the authors, recipients or custodians of documents falling within the request. The plan should ensure that all such individuals are contacted and interviewed regarding their knowledge of the existence of any documents covered by the discovery request, and should include steps to ensure that all documents within their knowledge are retrieved. All documents received from the client should be reviewed by counsel to see whether they indicate the existence of other documents not retrieved or the existence of other individuals who might have documents, and there should be appropriate follow up. Of course, the details of an appropriate document search will vary, depending upon the circumstances of the particular case, but in the abstract the Court believes these basic procedures should be employed by any careful and conscientious lawyer in every case.

 Id. at pgs. 32-33.

Like any litigation counsel, Tellermate’s counsel had an obligation to do more than issue a general directive to their client to preserve documents which may be relevant to the case. Rather, counsel had an affirmative obligation to speak to the key players at Tellermate so that counsel and client together could identify, preserve, and search the sources of discoverable information. See Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614, 629 (D. Colo. 2007). In addition, “counsel cannot turn a blind eye to a procedure that he or she should realize will adversely impact” the search for discovery. Id. Once a “litigation hold” is in place, “a party cannot continue a routine procedure that effectively ensures that potentially relevant and readily available information is no longer ‘reasonably accessible’ under Rule 26(b)(2)(B).” Id.

Id. at pg. 35.

As noted above, Tellermate and its counsel also made false representations to opposing counsel and the Court concerning the existence of documents relating to the Frank Mecka matter. Indeed, at the hearing on the pending motions, Tellermate’s counsel stated that she was unaware of the existence of the great majority of the Frank Mecka documents until almost a year after they were requested. Once again, it is not sufficient to send the discovery request to a client and passively accept whatever documents and information that client chooses to produce in response. See Cache La Poudre Feeds, 244 F.R.D. at 629.

 Id. at pg. 37 (emphasis added).

There are two distinct but related problems with trying to remedy Tellermate’s failings concerning these documents. The first is the extremely serious nature of its, and counsel’s, strenuous efforts to resist production of these documents and the strident posture taken with both opposing counsel and the Court. Perhaps the most distressing aspect of the way in which this was litigated is how firmly and repeatedly counsel represented Tellermate’s inability to produce these documents coupled with the complete absence of Tellermate’s compliance with its obligation to give counsel correct information, and counsel’s complete abdication of the responsibilities so well described by this Court in Bratka. At the end of the day, both Tellermate’s and its counsel’s actions were simply inexcusable, and the Court has no difficulty finding that they were either grossly negligent or willful acts, taken in objective bad faith.

Id. at pg. 43.

The only realistic solution to this problem is to preclude Tellermate from using any evidence which would tend to show that the Browns were terminated for performance-related reasons. … This sanction is commensurate with the harm caused by Tellermate’s discovery failures, and is also warranted to deter other similarly-situated litigants from failing to make basic, reasonable inquiries into the truth of representations they make to the Court, and from failing to take precautions to prevent the spoliation of evidence. It serves the main purposes of Rule 37 sanctions, which are to prevent parties from benefitting from their own misconduct, preserving the integrity of the judicial process, and deterring both the present litigants, and other litigants, from engaging in similar behavior.

Id. at pg. 45.

Of course, it is also appropriate to award attorneys’ fees and costs which the Browns have incurred in connection with moving to compel discovery concerning the salesforce.com documents and the Mecka documents, and those fees and expenses incurred in filing and prosecuting the motion for sanctions and the motion relating to the attorneys-eyes-only documents. … Finally, Tellermate and its counsel shall pay, jointly, the Browns’ reasonable attorneys’ fees and costs incurred in the filing and prosecution of those two motions as well as in the filing of any motions to compel discovery relating to the salesforce.com and Frank Mecka documents.

Id. at pgs. 45-46.

So sayeth the Court.

 Conclusion

obligatory iPhone Selfie jazzed up with ink strokes effectsThe defendant’s law firm here did a disservice to their clients by not pushing back, and by instead simply accepting their clients’ report on what relevant ESI they had, or did not have. Defense counsel cannot do that. We have a responsibility to supervise discovery, especially complex e-discovery, and be proactive in ESI preservation. This opinion shows what happens when a firm chooses not to be diligent. The client loses and the lawyers are sanctioned.

Our obligation as attorneys of record does not end with the client’s sending a litigation hold notice. If a client tells us something regarding the existence, or more pointedly, the non-existence, of electronically stored information that does not make sense, or seemingly is contradicted by other evidence, it is critical for an attorney to investigate further. The client may not want you to do that, but it is in the client’s best interests that you do so. The case could depend upon it. So could your license to practice law, not to mention your reputation as a professional. It is never worth it. It is far better to sleep well at night with a clear conscience, even if it sometimes means you lose a client, or are generally not as successful, or rich, as the few ethically challenged lawyers who appear to get away with it.


Jones Day Attorney Misconduct Shows Rotten State of Obstructionist Discovery in America

August 10, 2014
Judge_Bennett_close

U.S. District Court Judge Mark Bennett

You have probably heard about the sanctions order against a Jones Day attorney entered by U.S. District Court Judge Mark W. Bennett. But have you read the order? Now you can. It is reproduced here in full. I have not changed a thing, except to embolden the text that I think is of special interest to e-discovery practitioners. The misconduct described in here pertains to deposition defense, but the general comments apply to all types of discovery, including electronic.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION No. C 11-4017-MWB

THE SECURITY NATIONAL BANK OF SIOUX CITY, IOWA, as Conservator for J.M.K., a Minor, Plaintiff,

vs.

ABBOTT LABORATORIES,  Defendant.

MEMORANDUM OPINION AND ORDER REGARDING SANCTIONS

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TABLE OF CONTENTS

I. PROCEDURAL HISTORY ………………………………………………………. 5

II. ANALYSIS ……………………………………………………………………………. 7

A. Standards for Deposition Sanctions ……………………………………… 7

B. Deposition Conduct ……………………………………………………………. 10

1. “Form” Objections ………………………………………………………………. 10

2. Witness Coaching ………………………………………………………………. 18

3. Excessive Interruptions …………………………………………………….. 30

C. Appropriate Sanction ………………………………………………………… 31

III. CONCLUSION …………………………………………………………………. 34

Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark.1 Rather, it’s in discovery in modern federal civil litigation right here in the United States. Over two decades ago, Griffin Bell—a former United States Attorney General, United States appeals court judge, and private practitioner—observed: “The criticism of the civil justice system has reached a crescendo in recent years. Because

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1 WILLIAM SHAKESPEARE, HAMLET, act 1, sc. 4.

Case 5:11-cv-04017-MWB Document 205 Filed 07/28/14 Page 1 of 34

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much of the cost of litigation is incurred in discovery, the discovery process has been the focal point of considerable criticism.”2 How little things have changed.

Discovery—a process intended to facilitate the free flow of information between parties—is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections.3 Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught. As my distinguished colleague and renowned expert on civil procedure Judge Paul Grimm of the District of Maryland has written: “It would appear that there is something in the DNA of the American civil justice system that resists cooperation during discovery.”4 Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.”

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2 Griffin B. Bell et al., Automatic Disclosure in Discovery—The Rush to Reform, 27 GA. L. REV. 1, 1 (1992).

3 See Matthew L. Jarvey, Note, Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, and What We Can Do About Them, 61 DRAKE L. REV. 913, 917 n.20 (2013) (collecting cases disapproving of boilerplate objections); St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 513 (N.D. Iowa 2000) (same).

4 Hon. Paul W. Grimm & David S. Yellin, A Pragmatic Approach to Discovery Reform:How Small Changes Can Make a Big Difference in Civil Discovery, 64 S.C. L. REV. 495,530 (2013).

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Fed. R. Civ. P. 1. It persists because most litigators and a few real trial lawyers even very good ones, like the lawyers in this case—have come to accept it as part of the routine chicanery of federal discovery practice.But the litigators and trial lawyers do not deserve all the blame for obstructionist discovery conduct because judges so often ignore this conduct,6 and by doing so we 

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5 Judge Grimm and David Yellin aptly describe some of the misplaced motivations behind obstructionist tactics:

The truth is that lawyers and clients avoid cooperating with their adversary during discovery—despite the fact that it is in their clear interest to do so—for a variety of inadequate and unconvincing reasons. They do not cooperate because they want to make the discovery process as expensive and punitive as possible for their adversary, in order to force a settlement to end the costs rather than having the case decided on the merits. They do not cooperate because they wrongly assume that cooperation requires them to compromise the legitimate legal positions that they have a good faith basis to hold.

Lawyers do not cooperate because they have a misguided sense that they have an ethical duty to be oppositional during the discovery process—to “protect” their client’s interests—often even at the substantial economic expense of the client.

Clients do not cooperate during discovery because they want to retaliate against their adversary, or “get back” at them for the events that led to the litigation. But the least persuasive of the reasons for not cooperating during the discovery process is the entirely misplaced notion that the “adversary system” somehow prohibits it.

Id. at 525-26 (footnotes omitted). Amen Brother Grimm and Mr. Yellin for being so insightful and refreshingly candid.

6 Cf. Daniel C. Girard & Todd I. Espinosa, Limiting Evasive Discovery: A Proposal for Three Cost-Saving Amendments to the Federal Rules, 87 DENV. U. L. REV. 473, 475 (2010) (“The Federal Rules prohibit evasive responses . . . . In practice, however, these rules are not enforced. Service of evasive discovery responses has become a routine—and rewarding—litigation tactic.”)

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reinforce—even incentivize—obstructionist tactics.7 Most litigators, while often inept in jury trials (only because they so seldom experience them), are both smart and savvy and will continue to do what has worked for them in the past. Obstructionist litigators, like Ivan Pavlov’s dogs, salivate when they see discovery requests and are conditioned to unleash their treasure chest of obstructive weaponry. Unlike Pavlov’s dogs, their rewards are not food but successfully blocking or impeding the flow of discoverable information.

Unless judges impose serious adverse consequences, like court-imposed sanctions, litigators’ conditional reflexes will persist. The point of court-imposed sanctions is to stop reinforcing winning through obstruction.

While obstructionist tactics pervade all aspects of pretrial discovery, this case involves discovery abuse perpetrated during depositions. Earlier this year, in preparation for a hard-fought product liability jury trial, I was called upon by the parties to rule on numerous objections to deposition transcripts that the parties intended to use at trial. I noticed that the deposition transcripts were littered with what I perceived to be meritless objections made by one of the defendant’s lawyers, whom I refer to here as “Counsel.” I was shocked by what I read. Thus, for the reasons discussed below, I find that Counsel’s deposition conduct warrants sanctions.

I do not come to this decision lightly. Counsel’s partner, who advocated for Counsel during the sanctions hearing related to this case (and who is one of the best trial lawyers I have ever encountered), urged that sanctions by a federal judge, especially on

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7 Cf. id. at 483 (“The reluctance of courts to impose sanctions under Rule 37 has encouraged the use of evasive and dilatory behavior in response to discovery requests. Such behavior serves no purpose other than to increase the cost and delays of litigation.”).

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a lawyer with an outstanding career, like Counsel, should be imposed, if at all, with great hesitation and a full appreciation for how a serious sanction could affect that lawyer’s career. I wholeheartedly agree. I am still able to count each of the sanctions I have imposed on lawyers in my twenty years as a district court judge on less than all the fingers of one hand. Virtually all of those sanctions have been imposed on (or threatened to be imposed on) lawyers from out-of-state law firms.8

I. PROCEDURAL HISTORY

This matter arises out of a product liability case tried to a jury in January of 2014. Plaintiff Security National Bank (SNB), acting as conservator for a minor child, J.M.K., sued Defendant Abbott Laboratories (Abbott), claiming that J.M.K. suffered permanent brain damage after consuming baby formula, produced by Abbott, that allegedly contained a dangerous bacteria called enterobacter sakazakii. SNB went to trial against Abbott on design defect, manufacturing defect, and warning defect claims. On January 17, 2014, a jury found in favor of Abbott on SNB’s product liability claims. The Clerk entered judgment in favor of Abbott on January 21, 2014.

During the trial, I addressed Counsel’s conduct in defending depositions related to this case. Specifically, I filed a sua sponte order to show cause as to why I should not

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8 Iowa trial lawyers have a long and storied tradition and culture of civility that is first taught at the state’s two law schools, the University of Iowa College of Law and the Drake University Law School. I know this because I have taught and lectured at both of these outstanding law schools that produce the bulk of Iowa lawyers. Civility is then taken very seriously, nourished and lead by the Iowa Supreme Court, and continually reinforced by the Iowa State Bar Association, the Iowa Academy of Trial Lawyers, and all of the other legal organizations in the state, as well as senior members of the bar, law firm partners from large to small firms, and solo practitioners across the state. There is great pride in being an Iowa lawyer, and describing someone as an Iowa lawyer almost always connotes that lawyer’s high commitment to civility and professionalism. Of course, there are stinkers in the Iowa bar, but they are few and far between.

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sanction Counsel for the “serious pattern of obstructive conduct” that Counsel exhibited during depositions by making hundreds of “form” objections that ostensibly lacked a valid basis. Because I did not want to burden Counsel with the distraction of a sanctions hearing during trial, I suggested we table any discussion of sanctions until after the trial was over. Thus, the same day the judgment was filed, I entered a supplemental order to show cause, ordering Counsel to address three issues that potentially warrant sanctions: (1) Counsel’s excessive use of “form” objections; (2) Counsel’s numerous attempts to coach witnesses; and (3) Counsel’s ubiquitous interruptions and attempts to clarify questions posed by opposing counsel. My supplemental order focused on Counsel’s conduct in defending two particular depositions—those of Bridget Barrett-Reis and Sharon Bottock—but I noted that I would consider any relevant depositions in deciding whether to impose sanctions. On January 24, 2014, Counsel requested a substantial extension of time to respond to my supplemental order, which I granted. On April 21, 2014, Counsel responded to my supplemental order to show cause. My chambers later contacted Counsel to set this matter for telephonic hearing. Counsel requested another one-month delay, which I granted. Counsel filed an additional brief on July 9, 2014, and the hearing was finally held on July 17, 2014. During the hearing, I requested that Counsel follow up with an e-mail suggesting an appropriate sanction, should I decide to impose one. On July 21, 2014, Counsel’s partner sent an e-mail to me declining to suggest a sanction, and urging me not to impose sanctions.

After reviewing Counsel’s submissions, I find that Counsel’s conduct during depositions warrants sanctions. I discuss below the basis for imposing sanctions and the particular sanction that I deem appropriate in this case.

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II. ANALYSIS

A. Standards for Deposition Sanctions

“It is well established that a federal court may consider collateral issues [like sanctions] after an action is no longer pending.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990). Because Counsel’s deposition conduct is at issue here, Federal Rule of Civil Procedure 30 applies. Rule 30(d)(2) provides: “The court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” Rule 30(d)(2) does not limit the types of sanctions available; it only requires that the sanctions be “appropriate.” See Francisco v. Verizon S., Inc., 756 F. Supp. 2d 705, 712 (E.D. Va. 2010), aff’d, 442 F. App’x 752 (4th Cir. 2011) (“Although Rule 30(d)(2) does not define the phrase ‘appropriate sanction,’ the imposition of discovery sanctions is generally within the sound discretion of the trial court.” (citations omitted)).

District courts also have a “‘well-acknowledged’ inherent power . . . to levy sanctions in response to abusive litigation practices.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 765 (1980). “A primary aspect of that [power] is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). “[T]he inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct.” Id. at 49.

Counsel incorrectly argues—without citing to any dispositive authority—that I may not impose sanctions sua sponte under Rule 30(d)(2). Because SNB’s lawyers did not file a motion for sanctions, Counsel argues that I am without power to impose them under the Federal Rules.9 Rule 30(d)(2)’s text, however, imposes no such limitation on a

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9 The fact that SNB’s lawyers did not move for sanctions further suggests that lawyers have simply become numb to obstructionist discovery tactics, either because they are used to them, they choose to take the high ground, or perhaps because they use such tactics themselves. (After observing SNB’s lead lawyer at trial, I seriously doubt the latter.) Based on my 39 years as a member of the federal bar, I surmise that SNB’s lawyer did not move for sanctions because he has other enterobacter sakazakii cases against Counsel and did not want to undermine his ongoing relationship with Counsel by seeking sanctions. This rationale makes particular sense in a case like this where all of the information SNB’s lawyer needed to prove SNB’s manufacturing and product defect claim resided with Abbott and Counsel, and where there was no other avenue to obtaining case-critical information.

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court’s authority to sanction deposition conduct. The rule contains no motion-related preconditions whatsoever; it simply provides that “[t]he court may impose an appropriate sanction” on a person who obstructs a deposition. The advisory committee notes further suggest that courts may issue Rule 30(d)(2) sanctions without a motion from a party. The notes provide that sanctions under Rule 30(d) are congruent to those under Rule 26(g):

The rule also explicitly authorizes the court to impose the cost resulting from obstructive tactics that unreasonably prolong a deposition on the person engaged in such obstruction. This sanction may be imposed on a non-party witness as well as a party or attorney, but is otherwise congruent with Rule 26(g).

Fed. R. Civ. P. 30, advisory committee notes (1993 amendments). Under Rule 26(g), courts may issue sanctions sua sponte: “If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.” Fed. R. Civ. P. 26(g)(3) (emphasis added). In addition to Rule 30(d)’s text and the advisory committee notes, the United States Supreme Court has noted that “court[s] generally may act sua sponte in imposing sanctions under the Rules.” Chambers, 501 U.S. at 43 n.8; see also Jurczenko v. Fast Prop. Solutions, Inc., No. 1:09 CV 1127, 2010 WL 2891584, at *2-4 (N.D. Ohio July 20, 2010) (imposing sanctions under Rule 30(d)(2) where party moved for sanctions only under Rule 37(d)). And even if I lacked the power to issue

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sanctions under Rule 30(d), I would retain the authority to sanction Counsel under my inherent power. See In re Itel Sec. Litig., 791 F.2d 672, 675 (9th Cir. 1986) (“Sanctions may also be awarded sua sponte under the court’s inherent power.” (citing Roadway Exp., 447 U.S. at 765)).

Counsel also claims to have acted in good faith during the depositions related to this case. Even if that is true, it is inapposite. In imposing sanctions under either Rule 30(d)(2) or my inherent power, I need not find that Counsel acted in bad faith. “[T]he imposition of sanctions under Federal Rule[] of Civil Procedure 30(d)(2) . . . does not require a finding of bad faith.” GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 196 (E.D. Pa. 2008). Rather, the person sanctioned need only have “impede[d], delay[ed], or frustrate[d] the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). And only the most extreme sanctions under a court’s inherent power—like assessing attorney’s fees or dismissing with prejudice—require a bad-faith finding. See Chambers, 501 U.S. at 45-46 (noting that “a court may assess attorney’s fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons” (citations and internal quotation marks omitted)); Stevenson v. Union Pac. R. Co., 354 F.3d 739, 751 (8th Cir. 2004) (“A bad faith finding is specifically required in order to assess attorneys’ fees.” (citations omitted)); Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1207 (8th Cir. 1983) (“Dismissal with prejudice is an extreme sanction and should not be imposed unless the default was wilful or in bad faith.”). For less extreme sanctions, like those at issue here, “a finding of bad faith is not always necessary to the court’s exercise of its inherent power to impose sanctions.” Stevenson, 354 F.3d at 745 (citations omitted); see also Harlan v. Lewis, 982 F.2d 1255, 1260 (8th Cir. 1993) (“We do not believe Roadway extends the ‘bad faith’ requirement to every possible disciplinary exercise of the court’s inherent power, especially because such an extension would apply the requirement to even the most routine exercises of the inherent power. We find no statement in Roadway,

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Chambers, or any other decision cited by the parties, that the Supreme Court intended this ‘bad faith’ requirement to limit the application of monetary sanctions under the inherent power.” (internal citations and footnote omitted)). Still, while I need not find bad faith before imposing sanctions, I find it difficult to believe that Counsel could, in good faith, engage in the conduct outlined in this opinion.

The Eighth Circuit Court of Appeals “review[s] the imposition of discovery sanctions for an abuse of discretion.” Craig v. St. Anthony’s Med. Ctr., 384 F. App’x 531, 532 (8th Cir. 2010).

B. Deposition Conduct

In defending depositions related to this case, Counsel proliferated hundreds of unnecessary objections and interruptions during the examiner’s questioning. Most of these objections completely lacked merit and often ended up influencing how the witnesses responded to questions. In particular, Counsel engaged in three broad categories of improper conduct. First, Counsel interposed an astounding number of “form” objections, many of which stated no recognized basis for objection. Second, Counsel repeatedly objected and interjected in ways that coached the witness to give a particular answer or to unnecessarily quibble with the examiner. Finally, Counsel excessively interrupted the depositions that Counsel defended, frustrating and delaying the fair examination of witnesses. I will address each category of conduct in turn.

1. “Form” Objections

In the two depositions I asked Counsel to review in my order to show cause, Counsel objected to the “form” of the examiner’s question at least 115 times. That means that Counsel’s “form” objections can be found on roughly 50% of the pages10 of both the Barrett-Reis and Bottock depositions. Counsel made “form” objections with similar

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10 I calculated this number based on the number of deposition pages that actually contained testimony, excluding pages like the title page, etc.

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frequency while defending other depositions, too. Sometimes Counsel followed these “form” objections with a particular basis for objection, like “speculation” or “narrative.” Other times, Counsel simply objected to “form,” requiring the reader (and, presumably, the examiner) to guess as to the objection’s basis.

In addition to the sheer number of “form” objections Counsel interposed, Counsel also demonstrated the “form” objection’s considerable range, using it for a number of purposes. For example, Counsel used “form” objections to quibble with the questioner’s word choice (for no apparent reason, other than, perhaps, to coach the witness to give a desired answer):

Q. Would it be fair to say that in your career, work with human milk fortifier has been a significant part of your job?

COUNSEL: Object to the form of the question. “Significant,” it’s vague and ambiguous. You can answer it.

A. Yeah, I can’t really say it’s been a significant part. It’s been a part of my job, but “significant” is rather difficult because I have a wide range of things that I do there.

(Barrett-Reis Depo. 56:19 to 57:4).11 Counsel used “form” objections to voice absurdly hyper-technical truths:

Q. Are there certain levels that one can get, that have catwalks or some similar apparatus so I can get to the dryer?

A. The dryer is totally enclosed. You cannot get into the dryer from any of the levels.

Q. Can I get on the outside of the dryer?

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11 In reproducing portions of the deposition transcripts for this opinion, I occasionally change the notation identifying the speaker for reasons of anonymity, consistency, and ease of reading. For example, I do not use Counsel’s name, which appears in the transcripts. I also use “A.” to indicate a witness’s answer, whereas some of the transcripts use the phrase “the witness.” The words used by the speakers, however, remain unaltered.

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COUNSEL: Object to the form of the question; outside of the dryer? Everything is—I mean, outside of the dryer is a huge expanse of space; anything that’s not inside the dryer is outside the dryer, so I object to it as vague and ambiguous. Object to the form of the question.

A. Rephrase the question.

(Bottock Depo. 130:3-15). Counsel also used “form” objections to break new ground, inventing novel objections not grounded in the rules of evidence or common law:

Q. Are you familiar with the term “immunocompromised”?

A. Yes.

Q. And that would include premature babies?

COUNSEL: Object to the form of the question, “that would include premature babies?” It’s a non sequitur.12

(Barrett-Reis Depo. 54:15-21). (In case there is any doubt, non sequitur is not a proper objection.) But, whatever their purpose, Counsel’s “form” objections rarely, if ever, followed a truly objectionable question.

In my view, objecting to “form” is like objecting to “improper”—it does no more than vaguely suggest that the objector takes issue with the question. It is not itself a

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12 In response to my order to show cause, Counsel claims that “the question was misleading, confusing, vague and ambiguous[,]” and that it “call[ed] for a medical opinion or conclusion” (docket no. 193, at 13). None of these reasons relate to Counsel’s original claim that the question was a non sequitur. But, in any event, there is absolutely nothing confusing about the question, nor does it call for a medical conclusion (the witness held a PhD in nutritional science, though). This litany of adjectives— “misleading, confusing, vague and ambiguous”—are all too common in federal depositions and roll too easily and too frequently off the lips of lawyers who engage in repeated obstructionist conduct. Multiple objections like this are often a harbinger of obstructionist lawyers. That Counsel would cite those objections in “defense” of Counsel’s conduct suggests very strongly that Counsel just doesn’t get it, and further undermines Counsel’s claim of good faith. That these objections are part of an oft-used litigation strategy does not suggest that Counsel made them in good faith.

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ground for objection, nor does it preserve any objection. Instead, “form” objections refer to a category of objections, which includes objections to “leading questions, lack of foundation, assuming facts not in evidence, mischaracterization or misleading question, non-responsive answer, lack of personal knowledge, testimony by counsel, speculation, asked and answered, argumentative question, and witness’ answers that were beyond the scope of the question.” NGM Ins. Co. v. Walker Const. & Dev., LLC, No. 1:11-CV-146, 2012 WL 6553272, at *2 (E.D. Tenn. Dec. 13, 2012). At trial, when I asked Counsel to define what “form” objections entail, Counsel gave an even broader definition. Counsel first stated simply, “I know it when I hear it.” Counsel then settled on the barely narrower definition that “form” objections include “anything that can be remedied at the time of the deposition so that you do not waive the objection if the deposition is used at a hearing or trial.” Given that “form” may refer to any number of objections, saying “form” to challenge a leading question is as useful as saying “exception” to admit an excited utterance.

Yet, many lawyers—and courts for that matter—assume that uttering the word “form” is sufficient to state a valid objection. This assumption presumably comes from the terminology used in the Federal Rules. Rule 30(c)(2) governs deposition objections and provides in part:

An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner.

The advisory committee notes clarify the types of objections that must be noted on a deposition record:

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While objections may, under the revised rule, be made during a deposition, they ordinarily should be limited to those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer.

Fed. R. Civ. P. 30, advisory committee notes (1993 amendments) (emphasis added).

These notes refer to Rule 32(d)(3), which provides that certain objections are waived if not made during a deposition:

An objection to an error or irregularity at an oral examination is waived if:

(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and

(ii) it is not timely made during the deposition.

Fed. R. Civ. P. 32(d)(3)(B) (emphasis added). Together, these rules provide that any objection to the form of a question must be made on the record at a deposition, or that objection is waived.

But these rules do not endorse the notion that “form” is a freestanding objection. They simply describe categories of objections—like those to the form of a question—that must be noted during a deposition. Nothing about the text of Rules 30 or 32 suggests that a lawyer preserves the universe of “form” objections simply by objecting to “form.”

I agree with my colleague, Magistrate Judge Scoles, in his analysis of this issue:

[Some] contend that the objection should be limited to the words “I object to the form of the question.” The Rule, however, is not so restrictive. Rather, it simply provides that the objection must be “stated concisely in a nonargumentative and nonsuggestive manner.” . . . [T]he general practice in Iowa permits an objector to state in a few words the manner in which the question is defective as to form (e.g., compound,

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vague as to time, misstates the record, etc.). This process alerts the questioner to the alleged defect, and affords an opportunity to cure the objection.

Rakes v. Life Investors Ins. Co. of Am., No. C06-0099, 2008 WL 429060, at *5 (N.D. Iowa Feb. 14, 2008); see also Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012) (“Although the [rules] talk about objections based on the ‘form’ of the question (or responsiveness of the answer), this does not mean that an objection may not briefly specify the nature of the form objection (e.g. ‘compound,’ ‘leading,’ ‘assumes facts not in evidence’).”). I would go further, however, and note that lawyers are required, not just permitted, to state the basis for their objections.

Moreover, “form” objections are inefficient and frustrate the goals underlying the Federal Rules. The Rules contemplate that objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., advisory committee notes (1993 amendments) (noting that “[d]epositions frequently have been unduly prolonged . . . by lengthy objections and colloquy” and that objections “ordinarily should be limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to the form of a question”). While unspecified “form” objections are certainly concise, they do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “form” objections do not allow the examiner to immediately cure the objection. Instead, the examiner must ask the objector to clarify, which takes more time and increases the amount of objection banter between the lawyers. Briefly stating the particular ground for the objection, on the other hand, is no less concise and allows the examiner to ask a remedial question without further clarification.

Additionally, it is difficult, if not impossible, for courts to judge the validity of unspecified “form” objections:

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[U]nless an objector states with some specificity the nature of his objection, rather than mimicking the general language of the rule, i.e., “objection to the form of the question,” it is impossible to determine, based upon the transcript of the deposition itself, whether the objection was proper when made or merely frivolous.

Mayor & City Council of Baltimore v. Theiss, 729 A.2d 965, 976 (Md. 1999). When called upon to rule on an unspecified “form” objection, a judge either must be clairvoyant or must guess as to the objection’s basis. Neither option is particularly realistic or satisfying. This is reason enough to require a specific objection.

Requiring lawyers 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. For example, “Objection, hearsay” is a proper objection. By contrast, “Objection, the last assertion by Mr. Jones was an out-of-court statement by Ms. Day, said in the hotel room, that Mr. Jones allegedly heard, that he never testified to in a deposition, and that is now being offered for the truth of Ms. Day’s statement” is an improper speaking objection. I have always required the former and barred the latter.

I recognize, however, that not all courts share my views regarding “form” objections. In fact, some courts explicitly require lawyers to state nothing more than unspecified “form” objections during depositions. See Offshore Marine Contractors, Inc. v. Palm Energy Offshore, L.L.C., No. CIV.A. 10-4151, 2013 WL 1412197, at *4 (E.D. La. Apr. 8, 2013) (“The Court finds that the behavior of counsel for OMC does not warrant sanctions here. Indeed, most of the objections by OMC’s counsel are simple form objections with no unwarranted, lengthy speaking objections.”); Serrano, 2012 WL 28071, at *5 (“But such an objection [to a vague question] to avoid a suggestive speaking objection should be limited to an objection ‘to form,’ unless opposing counsel requests further clarification of the objection.”); Druck Corp. v. Macro Fund (U.S.) Ltd., No. 02 CIV.6164(RO)(DFE), 2005 WL 1949519, at *4 (S.D.N.Y. Aug. 12, 2005) (“Any

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‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason.”); Turner v. Glock, Inc., No. CIV.A. 1:02CV825, 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004) (“All other objections to questions during an oral deposition must be limited to ‘Objection, leading’ and ‘Objection, form.’ These particular objections are waived if not stated as phrased above during the oral deposition.”); Auscape Int’l v. Nat’l Geographic Soc’y, No. 02 CIV. 6441(LAK), 2002 WL 31014829, at *1 (S.D.N.Y. Sept. 6, 2002) (“Once counsel representing any party states, ‘Objection’ following a question, then all parties have preserved all possible objections to the form of the question unless the objector states a particular ground or grounds of objection, in which case that ground or those grounds alone are preserved.”); In re St. Jude Med., Inc., No. 1396, 2002 WL 1050311, at *5 (D. Minn. May 24, 2002) (“Objecting counsel shall say simply the word ‘objection’, and no more, to preserve all objections as to form.”).13 For the reasons discussed above, I think this approach makes little legal or practical sense.

But, because there is authority validating “form” objections, I do not impose sanctions based on the fact that Counsel used these objections while defending depositions. Counsel’s “form” objections, however, amplified two other issues: witness coaching and excessive interruptions. As I discuss below, those aspects of Counsel’s deposition conduct warrant sanctions. Thus, I impose sanctions related to Counsel’s “form” objections only to the extent that those objections facilitated the coaching and interruptions. Although I do not impose sanctions based on Counsel’s “form” objections

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13 The record contains no indication that Counsel knew of, or relied on, these, or similar cases when Counsel made “form” objections during depositions. Counsel did not claim to know of these cases, or similar lines of authority, at the time Counsel made the “form” objections, in Counsel’s response to either of my show-cause orders, or at the sanctions hearing.

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in this case, lawyers should consider themselves warned: Unspecified “form” objections are improper and will invite sanctions if lawyers choose to use them in the future.

2. Witness Coaching

While there appears to be disagreement about the validity of “form” objections, the law clearly prohibits a lawyer from coaching a witness during a deposition. Under Rule 30(c)(2), deposition “objection[s] must be stated concisely in a nonargumentative and nonsuggestive manner.” See also Fed. R. Civ. P. 30, advisory committee notes (1993 amendments) (“Depositions frequently have been . . . unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.”). This clause mandates what should already be obvious—lawyers may not comment on questions in any way that might affect the witness’s answer:

The Federal Rules of Evidence contain no provision allowing lawyers to interrupt the trial testimony of a witness to make a statement. Such behavior should likewise be prohibited at depositions, since it tends to obstruct the taking of the witness’s testimony. It should go without saying that lawyers 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.

Hall v. Clifton Precision, 150 F.R.D. 525, 530-31 (E.D. Pa. 1993); see also Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010) (“Objections that are argumentative or that suggest an answer to a witness are called ‘speaking objections’ and are improper under Rule 30(c)(2).”).

Despite the Federal Rules’ prohibition on witness coaching, Counsel’s repeated interjections frequently prompted witnesses to give particular, desired answers to the examiner’s questions. This happened in a number of ways. To start, Counsel often made “clarification-inducing” objections—objections that prompted witnesses to request that the examiner clarify otherwise cogent questions. For example, Counsel regularly

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objected that questions were “vague,” called for “speculation,” were “ambiguous,” or were “hypothetical.” These objections usually followed completely reasonable questions.

But, after hearing these objections, the witness would usually ask for clarification, or even refuse to answer the question:

Q. Is there—do you believe that there’s—if there’s any kind of a correlation that could be drawn from OAL environmental samples to the quality of the finished product?

COUNSEL: Objection; vague and ambiguous.

A. That would be speculation.

Q. Well, if there were high numbers of OAL, Eb samples in the factory, wouldn’t that be a cause for concern about the microbiological quality of the finished product?

COUNSEL: Object to the form of the question. It’s a hypothetical; lacks facts.

A. Yeah, those are hypotheticals.

. . .

Q. Would that be a concern of yours?

COUNSEL: Same objection.

A. Not going to answer.

Q. You’re not going to answer?

A. Yeah, I mean, it’s speculation. It would be guessing.

COUNSEL: You don’t have to guess.

(Bottock Depo. 106:24 to 108:2). While it is impossible to know for certain what a witness would have said absent Counsel’s objections, I find it inconceivable that the witnesses deposed in this case would so regularly request clarification were they not tipped-off by Counsel’s objections. See McDonough v. Keniston, 188 F.R.D. 22, 24 (D.N.H. 1998) (“The effectiveness of [witness] coaching is clearly demonstrated when

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the [witness] subsequently adopts his lawyer’s coaching and complains of the broadness of the question . . . .”); Cordova v. United States, No. CIV.05 563 JB/LFG, 2006 WL 4109659, at *3 (D.N.M. July 30, 2006) (awarding sanctions based on a lawyer’s deposition coaching because “it became impossible to know if [a witness’s] answers emanated from her own line of reasoning or whether she adopted [the] lawyer’s reasoning from listening to his objections”).

These same objections spilled over into the trial. The following colloquy occurred during the plaintiff’s cross-examination of Counsel’s expert:

Q. . . . Isn’t [J.M.K.’s mother] saying that every time she used a bottle she boiled it first?

COUNSEL: Your Honor, I would just object that in the—it’s not clear from the context of this one page or several pages what it is they’re talking about in terms of which feedings, if he can point it out to him.

THE COURT: And so what is the nature of that objection? I haven’t ever heard that one before.

COUNSEL: It’s confusing.

THE COURT: Well, it may be confusing to you, but he didn’t ask the question to you. He asked it of the witness.

COUNSEL: Okay. Might be confusing to the witness.

THE COURT: Yeah, that’s suggesting an answer which is exactly the problem I had with your depositions.

COUNSEL: I would just object to the form of the question then, Your Honor.

THE COURT: That’s not a proper objection, so it’s overruled.

A. As I read this, I can’t be certain as to what exactly she’s referring to at what point here.

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Once again, after Counsel’s objection suggested that the question “might” confuse the witness, the witness replied that he “[couldn’t] be certain” as to what was being asked.

But perhaps the most egregious examples of clarification-inducing objections arose when Counsel defended the deposition of Sharon Bottock. During that deposition, Counsel lodged no fewer than 65 “form” objections, many of which did not specify any particular basis. Immediately after most of these “form” objections, the witness gave the seemingly Pavlovian response, “Rephrase.” At times, the transcript feels like a tag-team match, with Counsel and witness delivering the one-two punch of “objection”– “rephrase”:

Q. . . . I’m wondering if you could perhaps in a . . . little bit less technical language explain to me what they’re talking about in that portion of the exhibit.

COUNSEL: Object to the form of the question.

A. So rephrase.

Q. Could you tell me what they’re saying here?

COUNSEL: Same objection.

A. Rephrase it again.

. . .

Q. So it—that’s what they’re talking about, the two types, the finished product and the overs? Does it separate those two things?

A. Yes.

Q. What’s an “over”?

COUNSEL: Object to the form. He doesn’t want you to characterize it. He wants to know what’s it made out of, I think.14

_______________________

14 Here, Counsel reinterprets the question for the witness—an issue that I address below.

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Q. I mean, is it too big?

COUNSEL: Object to the form of the question.

A. Rephrase.

(Bottock Depo. 58:20 to 59:25). Note the witness’s first answer in this colloquy: So rephrase. The witness’s language makes clear that she is requesting—actually, commanding—the examiner to rephrase based on Counsel’s objection.

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

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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.”).

Counsel’s clarification-inducing objections are reminiscent of the improper objections at issue in Phillips v. Manufacturers Hanover Trust Co., No. 92 CIV. 8527 (KTD), 1994 WL 116078 (S.D.N.Y. Mar. 29, 1994). In Phillips, a lawyer

objected or otherwise interjected during [the examiner’s] questioning of the deponent at least 49 times though the deposition lasted only an hour and a half. Indeed, approximately 60 percent of the pages of the transcript contain such interruptions. Many of these were objections as to form, which are waived if not made at the deposition, Fed. R. Civ. P. 32(d)(3)(B), but on numerous occasions [the lawyer’s] objections appeared to have no basis. . . . Moreover, after 21 of [the lawyer’s] objections as to form, the deponent asked for clarification or claimed he did not understand the question. . . . [The lawyer] objected as to form, and the deponent then stated he did not understand the question, subsequently asking that it be narrowed.

Id. at *3. In considering whether to impose sanctions, the court described the lawyer’s conduct as “inappropriate” and “obnoxious.” Id. The court also noted that the lawyer’s conduct frustrated the deposition:

Such interplay clearly did hamper the free flow of the deposition. Rather than answer [the examiner’s] questions to the best of his ability, the deponent hesitated, asking for clarification of apparently unambiguous questions. . . . In addition, the deponent asked for such clarifications almost exclusively after [the lawyer] objected or interrupted in some fashion.

Id. Finally, the court recognized that the lawyer’s conduct violated Rule 30, but chose not to impose sanctions because, at the time, Rule 30 was newly amended and because

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the examiner was able to finish the deposition. Id. at *4. The court warned, however, that “a repeat performance [would] result in sanctions.” Id.

Like the lawyer in Phillips, Counsel’s endless “vague” and “form” objections (and their variants described above) frustrated the free flow of the depositions Counsel defended. They frequently induced witnesses to request clarification to otherwise unambiguous questions. Counsel’s “form” objections also emboldened witnesses to quibble about the legal basis for certain questions—e.g., “That would be speculation”— and to stonewall the examiner—e.g., “Not going to answer.” In short, these objections were suggestive and amounted to witness coaching, thereby violating Rule 30.

But Counsel’s clarification-inducing objections are only part of the problem. In a related tactic, Counsel frequently concluded objections by telling the witness, “You can answer if you know” or something similar. Predictably, after receiving this instruction, witnesses would often claim to be unable to answer the question:

Q. Are these the ingredients that are added after preparation or after pasteurization?

COUNSEL: If you know. Don’t guess.

A. If you could rephrase the question. There’s no ingredients on 28.

COUNSEL: So you can’t answer the question.

(Bottock Depo. 47:12-18).

Q. If it’s high enough to kill bacteria, why does Abbott prior to that go through a process of pasteurization?

COUNSEL: If you know, and you’re not a production person so don’t feel like you have to guess.

A. I don’t know.

(Bottock Depo. 48:12-17).

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Q. Does it describe the heat treatment that you referred to a few moments ago, the heat treatment that occurs in the dryer phase?

. . .

COUNSEL: Okay. Do you know his question? He’s asking you if this is what you’re describing.

A. Yeah, I don’t know.

(Bottock Depo. 57:8-21).

Q. . . . Is there any particular reason that that language is stated with respect to powdered infant formula?

COUNSEL: If you know. Don’t—if you know.

A. No, I—no, not to my knowledge.

COUNSEL: If you know. I mean, do you know or not know?

A. I don’t know.

(Barrett-Reis Depo. 49:10-18). These responses are unsurprising. 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”).

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Lastly, Counsel often directly coached the witness to give a particular, substantive answer. This happened in a few ways. Sometimes Counsel reinterpreted or rephrased the examiner’s questions:

Q. To what extent do you have knowledge of the testing procedures that Abbott employs in raw materials or the environment, the plant environment or final product?

A. Very limited knowledge, again, because that would be product development.

COUNSEL: He’s just asking you what do you have. Do you have any? If it’s no, then just say “no.”

A. Okay.

(Barrett-Reis Depo. 20:16 to 21:2).

Q. . . . Do you know when that occurs or does it occur on a regular basis?

COUNSEL: Object to the form, regular basis. It says, “Once a year.” He means the same time once a year presumably but—

A. On an annual basis, the time may vary when we close the facility to fumigate.

(Bottock Depo. 34:5-11).

Q. At any rate, you’ll see that on both the first page of Exhibit 22 and the first page of Exhibit 23, there’s a picture of the product, and both of them have the word “NeoSure” on the product. Would you be able to tell me what the difference between those two products is?

. . .

COUNSEL: Well, he said difference between the products. It lacks foundation that there’s a difference between the products.

Q. There may not be. I don’t know. Can you tell me?

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COUNSEL: Well, the question is—I object to the form of the question. He’s not asking you just about the label. He’s asking you is there a difference in the product. So can you answer that?

(Barrett-Reis Depo. 29:2-20). Sometimes Counsel gave the witness additional information to consider in answering a question:

Q. For that particular infant who is not premature, like in this case was a twin, do you believe that NeoSure is an appropriate version of powdered infant formula?

COUNSEL: Object to the form. Lack of foundation in terms of what this baby—whether this baby was preterm or not. It’s not in evidence in this deposition nor in the record anyplace. And I object to the form of the question as calling for speculation.

Q. Go ahead.

COUNSEL: You can answer.

A. I can’t answer it without more information.

(Barrett-Reis Depo. 99:7-19). Sometimes Counsel answered the examiner’s question first, followed by the witness:

Q. . . . Is that accurate or is there something that they, you know, just chose not to put—

COUNSEL: If you know. She didn’t write this.

A. Yes, I didn’t write this.

(Bottock Depo. 27:20-25)

Q. Okay. The part that counsel just read, is that basically an accurate summary of the process?

COUNSEL: In general.

A. In general.

(Bottock Depo. 28:21-24).

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Q. . . . And then under “Follow-Up Test” for Eb it’s essentially the same thing as E. sak negative; right?

COUNSEL: It says zero.

A. It says zero.

Q. But which would—that would be the same type of finding if it said E. sak negative; right?

COUNSEL: In other words, there’s no Eb. There’s no Eb; there’s no—

A. It’s zero. There’s no Eb.

(Bottock Depo. 114:14-24). Counsel even audibly disagreed with a witness’s answer, prompting the witness to change her response to a question:

Q. My question is, was that a test—do you know if that test was performed in Casa Grande or Columbus?

A. I don’t.

COUNSEL: Yes, you do. Read it.

A. Yes, the micro—the batch records show finished micro testing were acceptable for the batch in question.

(Bottock Depo. 86:9-15).

All of the objections described in this section violate Rule 30 by suggesting, in one way or another, how the witness should answer a question. More troublingly, these objections allowed Counsel to commandeer the depositions, influencing the testimony in ways not contemplated by the Federal Rules. Instead of allowing for a question-and-answer session between examiner and witness, Counsel acted as an intermediary, which frustrated the purpose of the deposition:

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

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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.

Hall, 150 F.R.D. at 528 (footnote omitted); see also Alexander v. F.B.I., 186 F.R.D. 21, 52-53 (D.D.C. 1998) (noting that “[i]t is highly inappropriate for counsel for the witness to provide the witness with responses to deposition questions by means of an objection” or to “rephrase or alter the question” asked of the witness); Panken & Valbrune, supra, at 16 (“[C]ounsel is not permitted to state on the record an interpretation of questions, because those interpretations are irrelevant and are often suggestive of a particularly desired answer.”).

In response to my order to show cause, Counsel explains what motivated many ofthe objections that I perceive to be coaching:

In many places during the depositions of Abbott witnesses . . . where it was clear that the plaintiff’s counsel was on the wrong track factually . . . defense counsel attempted to steer him to the correct ground. When things got bogged down, hours in, defense counsel also attempted to speed up the process by helping to clarify or facilitate things, for which the plaintiff’s counsel seemed appreciative.

(Docket no. 193, at 4-5) (footnote omitted). It is not for the defending lawyer to decide whether the examiner is on the “wrong track,” nor is it the defending lawyer’s prerogative to “steer [the examiner] to the correct ground.” While lawyers are encouraged to be collegial and helpful to one another during depositions, Counsel’s conduct, on balance, was neither. It defies common sense to suggest that Counsel’s omnipresent commentary sped up the depositions in this case. Moreover, most of

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Counsel’s commentary during depositions were objections, not benign attempts to clarify. Because this commentary coached witnesses to give particular answers, I find that sanctions are appropriate.

3. Excessive Interruptions

Beyond the “form” objections and witness coaching, Counsel’s interruptions while defending depositions were grossly excessive. Counsel’s name appears at least 92 times in the transcript of the Barrett-Reis deposition (about once per page), and 381 times in the transcript of the Bottock deposition (approaching three times per page). Counsel’s name appears with similar frequency in the other depositions that Counsel defended. And, as I noted earlier, nearly all of Counsel’s objections and interruptions are unnecessary and unwarranted.

These excessive and unnecessary interruptions are an independent reason to impose sanctions. The notes accompanying Rule 30 provide that sanctions may be appropriate “when a deposition is unreasonably prolonged” and that “[t]he making of an excessive number of unnecessary objections may itself constitute sanctionable conduct . . . .” Fed. R. Civ. P. 30, advisory committee notes (1993 amendments); see also Craig, 384 F. App’x at 533 (“The notes also explain that an excessive number of unnecessary objections may constitute actionable conduct, though the objections be not argumentative or suggestive.”). At least two courts in this circuit have imposed sanctions based, in part, on a lawyer’s excessive and unnecessary objections during depositions. See id. (affirming a monetary sanction against a lawyer who made “a substantial number of argumentative objections together with suggestive objections” that “impeded, delayed, or frustrated [a] deposition”); Van Pilsum v. Iowa State Univ. of Sci. & Tech., 152 F.R.D. 179, 181 (S.D. Iowa 1993) (sanctioning a lawyer who had “no justification for . . . monopoliz[ing] 20% of his client’s deposition” and whose objections “were for the most part groundless, and were only disputatious grandstanding”).

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By interposing many unnecessary comments, clarifications, and objections, Counsel impeded, delayed, and frustrated the fair examination of witnesses during the depositions Counsel defended. Thus, sanctions are independently appropriate based on Counsel’s excessive interruptions.

C. Appropriate Sanction

Based on Counsel’s deposition conduct, I would be well within my discretion to impose substantial monetary sanctions on Counsel. But I am less interested in negatively affecting Counsel’s pocketbook than I am in positively affecting Counsel’s obstructive deposition practices. I am also interested in deterring others who might be inclined to comport themselves similarly to Counsel. The Federal Rules specifically acknowledge that one function of discovery sanctions should be deterrence. See Fed. R. Civ. P. 26, advisory committee notes (1983 amendments) (“Sanctions to deter discovery abuse would be more effective if they were diligently applied ‘not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.’” (quoting National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976)). Deterrence is especially important given that so many litigators are trained to make obstructionist objections. For instance, at trial, when I challenged Counsel’s use of “form” objections, Counsel responded, “Well, I’m sorry, Your Honor, but that was my training . . . .” While monetary sanctions are certainly warranted for Counsel’s witness coaching and excessive interruptions, a more outside-the-box sanction15 may better serve the goal of

_______________________

15 For examples of outside-the-box discovery sanctions, see the following cases: St. Paul Reinsurance Co., 198 F.R.D. at 518 (imposing a write-a-bar-journal-article sanction); R.E. Linder Steel Erection Co., Inc. v. U.S. Fire Ins. Co., 102 F.R.D. 39, 41 (D. Md. 1983) (imposing a $5.00-per-inturruption sanction); Huggins v. Coatesville Area Sch. Dist., No. CIV.A. 07-4917, 2009 WL 2973044, at *4 (E.D. Pa. Sept. 16, 2009) (imposing a sit-down-and-share-a-meal-together sanction).

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changing improper tactics that modern litigators are trained to use. See Matthew L. Jarvey, Note, Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, and What We Can Do About Them, 61 DRAKE L. REV. 913, 931-36 (2013) (discussing the importance of unorthodox sanctions in deterring discovery abuse).

In light of this goal, I impose the following sanction: Counsel must write and produce a training video in which Counsel, or another partner 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.16 The video must specifically address the impropriety of unspecified “form” objections, witness coaching, and excessive interruptions. The lawyer appearing in the video may mention the few jurisdictions that actually require only unspecified “form” objections and may suggest that such objections are proper in only those jurisdictions. The lawyer in the video must state that 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. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval. If and when I approve the video, Counsel must (1) notify certain lawyers at Counsel’s firm about the video via e-mail and (2) provide those lawyers with access to the video. The lawyers who must receive this notice and access include each lawyer at Counsel’s firm—including its branch offices worldwide—who engages in federal or state 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. After

_______________________

16 I am not the first judge to suggest a video-related sanction. In Florida Bar v. Ratiner, 46 So. 3d 35, 41 n.4 (Fla. 2010), the Florida Supreme Court noted that law students and members of the Florida bar could view footage of a videotaped deposition in which a later-suspended lawyer behaved unprofessionally toward his opposing counsel as part of a course on professionalism.

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providing these lawyers with notice of and access to the video, Counsel must file in this court, under seal, (1) an affidavit certifying that Counsel complied with this order and received no assistance (other than technical help or help from the lawyer appearing in the video) in creating the video’s content and (2) a copy of the e-mail notifying the appropriate lawyers in Counsel’s firm about the video. The lawyer appearing in the video need not state during the video that he or she agrees with this opinion, or that Counsel was the lawyer whose deposition conduct prompted this sanction. Counsel need not make the video publicly available to anyone outside Counsel’s firm. Failure to comply with this order within 90 days may result in additional sanctions.

To be clear, had Counsel made only a handful of improper objections or comments while taking depositions, I would not have raised these issues sua sponte. Depositions can be stressful and contentious, and lawyers are bound to make the occasional improper objection. But Counsel’s improper objections, coaching, and interruptions went far beyond what judges should tolerate of any lawyer, let alone one as experienced and skilled as Counsel. Counsel’s baseless interjections and obstructionist commentary were ubiquitous; they pervaded the depositions in this case and even spilled over into the trial. It is the repeated nature of Counsel’s obstructionist deposition conduct that warrants sanctions here.

Finally, I note that, despite Counsel’s deposition conduct, I was greatly impressed by how Counsel performed at trial. Unlike the “litigators” I discussed earlier, Counsel was extremely well-prepared, had clearly mastered the facts of this case, and did a great job of incorporating electronic evidence into Counsel’s direct- and cross-examinations. Those aspects of Counsel’s noteworthy trial skills, expertise, and preparation are laudable, but they do not excuse Counsel’s pretrial conduct.

If Counsel appeals this sanctions order I will, sua sponte, automatically stay it pending the appeal.

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III. CONCLUSION

For the reasons stated in this opinion, I find that sanctions are appropriate in response to Counsel’s improper deposition conduct, which impeded, delayed, and frustrated the fair examination of witnesses in the depositions related to this case that Counsel defended. I therefore impose the sanction described above.

IT IS SO ORDERED.

DATED this 28th day of July, 2014.

______________________________________

MARK W. BENNETT

U.S. DISTRICT COURT JUDGE

NORTHERN DISTRICT OF IOWA

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Do you think Judge Bennett’s order was too easy on this attorney, too strict, or just about right. Why or why not? What do you think about the judge not even naming the attorney? Is that appropriate in a sanctions order? Do you think this kind of discovery misconduct could have had an impact on the outcome of the case? Was it fair to the plaintiff, who lost this very serious case? Does this become grounds for a new trial or appeal? What do you think? Please leave a comment below.



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