The Journal of The DuPage County Bar Association

Back Issues > Vol. 27 (2014-15)

The Dance of the Discovery Deposition: Dealing with Dodges
By Sean McCumber

The everyday American knows the word “deposition,” and has likely either been a deponent or watched a deposition of particular newsworthiness through social media. Unfortunately, many of the depositions available via the media or through social sites like YouTube highlight questionable behavior on the part of the participants. Thankfully, the Illinois Supreme Court has set basic rules for deposition conduct. However, no rule covers every deposition situation, particularly as it relates to objections.

In March of 2014, Justin Bieber sat for a videotaped deposition1 that made the rounds through and many other news sites. Viewers watched Mr. Bieber wink at the camera, mock the attorney, and question every question asked of him. His behavior fueled the common mantra that pop stars continue to be out of control. However, what those snippets also showed were the “form” objections made by Bieber’s lawyer, as well as his objections that essentially stalled the other attorney and provided veiled guidance to his client, Mr. Bieber. Another deposition that made some rounds on social media involved an Ohio lawsuit where the word “photocopy” was made to be one of the most confusing words in history.2 The attorney for the Recorder of Deeds in that case made countless “form” objections, most of which focused on the “confusing” definition of photocopy. That attorney also made objections as to the fairness of the question, as well as objections to the question calling for a legal or factual conclusion, essentially advising the witness not to answer the question through his lengthy colloquy. Now, objections are so integral to the concept of being a lawyer that even the everyday citizen has a solid understanding of objections and their use.

These cases, among others, call to the light the real issue: if discovery is designed to lay out the facts of the case, search for information that will lead to other relevant evidence, and otherwise level the playing field in advance of trial, then why do discovery depositions result in the battleground of objections and attempts to obfuscate information? United States District Court Judge Mark W. Bennett issued an order, in a civil lawsuit in the Northern District of Iowa, wherein the Court sanctioned one side’s attorneys for conduct that occurred during a discovery deposition.3 The attorneys sanctioned represented Abbott Laboratories; the Court first issued a rule to show cause against the Abbott attorneys, and then issued the sanction, on its own motion, several months after the Court entered the order dismissing the case after a jury found no liability for Abbott.4 Judge Bennett hung his ruling on Fed.R.Civ.P. 30(d)(2), which permits the Court to impose an appropriate sanction on a person who impedes, delays, or frustrates the fair examination of the deponent.

Specifically, Judge Bennett found that the form objections were an unnecessary waste of time. Furthermore, he complains that the form objections did not explain what the problem was so that the questioner could cure the problem. His biggest frustration, as evident from his opinion, is that the objections become an excessive interruption to the orderly flow of discovery and serve as a means of witness coaching. The court found that certain objections were used to coach the witness not to answer questions. Judge Bennett objected to the use of “vague and ambiguous” as an objection because it was used to coach the witness to refuse to answer on the ground that the question called for speculation. Judge Bennett objected to objections such as “You can answer if you know,” because it essentially directed the witness to state that he or she did not know. The end result of this lengthy and detailed exposition on the abuses in discovery depositions is this 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. 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…. Counsel need not make the video publicly available to anyone outside Counsel’s firm.

It appears that Judge Bennett struck a chord, for less than one month later, United States District Court Judge Frederick F. Mumm issued an order directing the attorneys how to properly conduct a deposition.5 In this patent infringement case, the defense witness evaded questions so deftly that the Court found the behavior strained credulity.

The Court expressed further dismay at the defense attorneys, stating “hopped on the bandwagon and began interposing inappropriate objections that perfectly clear (albeit broad) questions were vague.” The Court noted that the defense attorneys’ interposed inappropriate objections, “cluing the witness to ask the questions to be rephrased, and wasting everyone’s time trying to engage plaintiff’s counsel in banter.” The plaintiff’s attorneys filed an ex parte motion to compel the deposition, and in granting the motion, the Court ordered the defense attorneys to not assert any objections other than:

1) privilege,

2) assumption of facts that are, in good faith, disputed, or

3) mischaracterization of the record.

The Court further prohibited the defense attorneys from interrupting any question other than by the permitted objections. Lastly, the Court forbade either side from engaging in any “banter” with the other side. Neither of these situations in Iowa or California are rare occurrences and neither order is necessarily a first in the field of discovery sanctions. Each decision, though, indicates that the Courts have taken notice that behaviors in depositions have fallen into disarray. The Courts have decided that attorneys must be taken back to the beginning and hold themselves to higher standards. The question arises — what should be done when an attorney in an Illinois case uses and abuses objections in a discovery deposition so as to coach and advise the witness through the use of objections or so as to so impede the deposition process with needless objections that the purpose of discovery is frustrated? Discovery depositions are used for the purpose exploring a deponent’s knowledge and seeking information that might lead to other admissible evidence.

However, these depositions also provide the framework (and even the boundaries of some witness testimony), making the desire to object bubble up to the surface until it can longer be contained. Depositions usually fall into a regular, simple routine. However, some depositions are so fraught with negative behaviors that the actual case controversy fades into the background.

The Illinois Supreme Court has set basic rules for deposition conduct, including the very conduct that Judge Bennett and Judge Mumm controlled with their respective federal court orders. Unfortunately, no rule covers every deposition situation, especially as it relates to objections. In Illinois, objections at depositions shall be concise and shall state the exact legal nature of the objection.6 Accordingly, the rules appear to speak against objections to the form of the question or otherwise are simply objections for the sake of objecting. Or, do they? The rules later state that “[o]bjections to the form of a question or answer, errors and irregularities occurring at the oral examination in the manner or taking of the deposition, in the oath or affirmation, or in the conduct of any person, and errors and irregularities of any kind which might be corrected if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.”7 Thus the conflict appears to resume. If the legal basis for the objection must clearly and concisely stated, then “form of the question” does not clearly and concisely lay the legal basis for the objection. However, if an objection to the form of the question is not made during the deposition, the issue is then waived. It would almost appear that Illinois attorneys face an impossible conundrum — either object and risk potential sanctions or remain silent and risk waiving the issue in a later portion of the case.

That becomes important because under current changes to the Illinois Supreme Court Rules allow the discovery deposition of someone other than a controlled expert witness to be used as evidence at trial in cases where the deponent is unable to attend or testify because of death or infirmity.8

With these rules in mind, the objection still stands as a shield and a sword. If the defending attorney wants to keep the examining attorney on his or her toes, objections might be used simply to disrupt the flow of the deposition. More likely, the objection could be used to “coach” the witness. These speaking objections are familiar — “if you know” or “calls for speculation” — and they essentially clue the witness to the fact that the defending attorney wants them to not answer or wants them to answer in a specific way.9 Or, the objections might not be proper. For instance, is “relevance” truly a proper objection in a discovery deposition? After all, the deposition itself is part of the discovery process, where disclosure is designed to find all possible evidence relevant to the claim, defense or counterclaim.10 For the same reasons, it may be questionable whether a hearsay objection is proper in a discovery deposition.

Regardless, just because a defending attorney may abuse the deposition process through the use of objections, the examining attorney need not join in the behavior. In fact, the rules make it clear that “errors and irregularities occurring at the oral examination in the manner or taking of the deposition, in the oath or affirmation, or in the conduct of any person” must be objected to at the deposition, or the objection to such conduct or behavior is waived.11 That rule makes it clear – either the attorney objects to the conduct of the defending attorney, specifically stating the basis of the objection to conduct, or the examining attorney cannot argue the issue later, which would preclude a motion for sanctions as to this conduct.12 Furthermore, before the examining attorney files the motion for sanctions, that attorney should have a personal consultation with the defending attorney, in the spirit of Rule 201(k), in an attempt to resolve the conduct objected to.13 Because the rules as applied require all of these actions to occur at the deposition itself, it further lends itself to bogging down the process.

However, once the record is made for the issue occurring at the discovery deposition, are sanctions appropriate? Under Illinois Supreme Court Rule 219(c), the Court may sanction violations of the rules relating to discovery or court orders relating to discovery by orders within its discretion, including (but specifically not limited to):

1) staying the proceedings until compliance occurs;

2) barring an offending party from filing pleadings relating to the non-compliance;

3) barring or dismissing the claim or counterclaim or defense of the offending party;

4) barring the witness or offending party from testifying;

5) striking the pleadings of an offending party; or 6) a monetary penalty, with interest.14

Other than that, the rule is rather open on the issue of sanctions. In Illinois, the case law stands clear:

1) discovery sanctions reside within the sole discretion of the trial court;

2) the sanction should encourage discovery to occur, rather than punish dilatory conduct; and

3) the sanction will not be overturned, absent an abuse of discretion.15

With that in mind, what might the appropriate sanction for objection abuse and witness coaching in a discovery deposition look like? As noted previously, the rule itself offers little comment or suggestion. The case law, though not providing guidance on what to impose, does clarify what is “too far.” A just order of sanctions under Rule 219(c) is one which, to the degree possible, insures both discovery and a trial on the merits.16 The Court must also consider the frequency of the violations in relation to the severity of the sanction.17 Some believe that the inhibition of the discovery process warrants the ultimate sanction:

the entry of default judgment (or dismissal of the action). However, the dismissal of a cause of action or sanctions which result in a default judgment are drastic sanctions and should only be employed when it appears that all other enforcement efforts of the court have failed to advance the litigation.18

In some cases, a monetary sanction might carry sufficient weight so as to encourage compliance with discovery, including following common courtesies during depositions. The Court can, and should, award attorneys’ fees for the party who seeks the Court’s assistance in obtaining compliance with the discovery rules, as well as awarding any costs for the court reporter for any disrupted or derailed depositions. A more extreme sanction would be the barring of the witness from testifying at trial in the cause of action. Because every case is fact specific and the actions occurring in every deposition include a multitude of factors, it is more than likely that the appellate court would review this sanction with a keener eye. Again, as noted previously, the Illinois Supreme Court has held that the goal of the sanction is to encourage compliance with discovery and ensuring a trial on the merits. Barring a witness may be the appropriate sanction, but the conduct leading to that sanction very well would have to greatly offend and inflame the trial court.

The better course of action is avoid the conduct that might lead to a sanction altogether. Just as Rule 201(k) applies to the conduct in the deposition, the rule applies to the entire discovery process. If the deposition seems to head to an area where the defending attorney is concerned, it would not be unreasonable for that attorney to request a discovery conference, even off the record, to attempt solve the problem before the objections arise and less appealing conduct occurs.19 Most certainly, most of these deposition situations are avoidable with proper preparation prior to the deposition. By reviewing the case facts with the client or witness, to the extent permitted, the attorney ensures that the witness is not speculating and is not guessing at the answers. By engaging in a mock deposition beforehand, the attorney can make those comments of “if you know” or “if you can answer.” It also serves as a teaching moment, wherein the client learns that “I don’t know” or “I don’t recall” are acceptable answers to questions. A deposition is a discovery tool; the standard is not whether the testimony will be admissible; the standard is could the testimony could lead to admissible evidence. Any objections should parallel that standard and lead to the resolution of the issue on the merits, not on procedural technicalities. 

1 This deposition occurred as part of a Florida case where a photographer sued Justin Bieber and his bodyguards for an alleged incident wherein Bieber directed his bodyguards to attack the photographer and obtain the photographic evidence.

2 The original mandamus action was filed in the Ohio Supreme Court, as State ex rel. Data Trace Information Services, L.L.C., et

al. v. Cuyahoga Recorder of Deeds, Case No. 10-2029. The case involved the Recorder’s fee of $2 per page photocopied. The Recorder provided thousands of documents by an electronic CD and attempted to charge $2 for every page on the CD.

3 Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. C11-4017-MWB (July 28, 2014 N.D. Iowa).

4 The case involved tainted baby formula and the allegation that said formula led to certain brain defects and meningitis for a baby who consumed the formula in question.

5 No. CV13-6089 SJO (FFMx) (Aug. 22 ,2014 C.D. Cal.).

6 Ill.S.Ct.R. 206(c)(3) (West 2014).

7 Ill.S.Ct.R. 211(c)(2) (West 2014).

8 Ill.S.Ct.R. 212(a)(5) (West 2014); cf. Berry v American Standard, Inc, 382 Ill App 3d 895, 888 NE2d 740 (5th Dist. 2008).

9 This article does not critique nor condone these types of objections, but rather merely uses them as an example for urposes of this article.

10 Ill.S.Ct.R. 201(b)(1) (West 2014). Full disclosure is required.

11 Ill.S.Ct.R. 211(c)(2) (West 2014).

12 There appears to be no case law on point on this issue. However, Rule 211(c)(2) has clear waiver language.

13 Ill.S.Ct.R. 201(k) (West 2014). The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.

14 Ill.S.Ct.R. 219(c) (West 2014).

15 Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 121-22, 692 N.E.2d 290 (1998); Besco v. Henslee, Monek & Henslee, 297 Ill. App. 3d 778, 782-83, 701 N.E.2d 1126, 1129 (3rd Dist. 1998); Harris v.Harris, 196 Ill. App. 3d 815, 822, 55 N.E.2d 10, 15 (1st Dist. 1990).

16 Shimanovsky, 181 Ill.2d at 123, 692 N.E.2d 286.

17 Sander v. Dow Chemical Co., 166 Ill.2d 48, 651 N.E.2d 1071 (1995)

18 Hartnett v. Stack, 241 Ill.App.3d 157, 175-76, 607 N.E.2d 703 (2nd Dist. 1993).

19 The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Ill.S.Ct.R. 201(k) (West 2014). 

Sean McCumber is a partner at Sullivan Taylor & Gumina, P.C. in Wheaton, Illinois. He concentrates his practice in assisted reproduction and family formation, adoptions, and juvenile law. He presently serves as the Vice-Chair of the Civil Law and Practice Committee and the Chair of Immigration Law Committee. In addition to practicing law, he teaches taekwondo and has begun learning the art of indoor skydiving.

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