Page Comment 635 “There will be a motion forth- coming to exclude her testimony in this case…”
667 “Well, we’re going to end this deposition…”
667 “It’s not my case that’s on the line here. You’re treading some thin ice.”
683 “And I tell you, this case is really close to being dismissed.”
711 [asked by Plaintiff ’s counsel not to yell at the witness and to keep his report to himself] “I’m not doing either…And if you want to continue with your antics, then you will see another motion.”
805 [to witness] “I’ll check up on you, Dr. Ziem, see if you’re telling the truth. That is the point of this exercise.”
854 [to Plaintiff ’s counsel] “Laugh all you want. The last laugh is al- ways with me . . . You think this is really funny.
I’m taking this
very seriously. I’m outraged at the way this has proceeded. And, as you know, I’m continuously de- bating in my mind whether to stop at any given moment and slap one more motion to end this case on you.”
The sanctions assessed by Magistrate
Judge Grimm were tailored to deter Defendant’s counsel from engaging in such conduct in the future. ␣ The Court ordered Defendant’s counsel to write a letter of apology to the deponent and Plaintiff ’s counsel. The Court also re- scinded its prior award of counsel fees in favor of Defendant arising out of the first session of the deposition of Plaintiff’s ex- pert. Finally, the Court ordered Defendant’s counsel to take a profession- alism course approved by the Court and to provide proof of the satisfactory completion of the course. This opinion by Magistrate Judge
Grimm should be sent to opposing coun- sel in advance of a deposition in any case in which you believe your adversary may be an over-aggressive deposition examiner. Not only might this opinion deter bad conduct, but if bad conduct occurs dur- ing a deposition, then your motion for sanctions will have extra weight due to opposing counsel’s failure to heed your warning. This opinion is also valuable because it outlines in detail the type of deposition harassment which nearly ev- ery trial lawyer has unfortunately endured at some point. One valuable lesson of Magistrate
Winter 2001 Trial Reporter 9
Judge Grimm’s opinion is the avoidance of speeches. Rather than unburdening yourself with the thoughts which you may have at a deposition, it is safer and more productive to stick with straight questions and answers. Let your opponent make the speeches; he will certainly hang him- self at some point with a caustic remark or an inappropriate direction to a witness. Furthermore, as the Plaintiff ’s counsel, your objective is always to accomplish discovery as expeditiously as possible; it is your opponent who is paid by the hour, not you.
Another important lesson is the value of videotaping a deposition, not only to keep a witness honest, but to keep op- posing counsel on the straight path. During the second day of the resumption of the deposition of the Plaintiff ’s expert, Plaintiff ’s counsel brought a videographer to record the deposition. The Court noted that while the deposition was be- ing videotaped, “the conduct of Defendant’s counsel markedly improved,” as did the responsiveness of the expert’s answers to his questions. Ever since videotape depositions have become commonplace, there has been much written about the use of videotape depositions as an offensive tactic. Spe- cifically, many commentators have argued
that taking the videotape deposition of a key witness or corporate designee of a De- fendant will show to the fact-finder that the witness (or the party on whose behalf the witness is testifying) is not forthcom- ing. However, equally important is the use of a videotape deposition for defen- sive purposes. Like the Freeman case, a videotape deposition can be extraordinar- ily helpful in deterring over-aggressive questioning by counsel. What is hidden by a cold transcript (tone and volume of voice) is starkly revealed on videotape. I have used a videographer for a deposition when I believed that opposing counsel would attempt to interpose bogus objec- tions and engage in other manipulative behavior.
In one case, I was amazed at
how tame opposing counsel was during a videotape deposition in a hotly contested matter.
III. STONE-WALLING BY THE DEFENSE Although discovery is important in
every case, complete and accurate discov- ery responses from the Defendant are particularly crucial in a products liability action. To appreciate why discovery of the Defendant is so important in a prod-
(Continued on page 10)
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48