Delaware Supreme Court Instructs on Duty of Lawyer Representing Errant Deponent
The Bencher—September/October 2019
By Francis G.X. Pileggi, Esquire
The Delaware Supreme Court recently provided practical guidance to lawyers on the duty of counsel faced with a deponent’s inappropriate conduct at a deposition. Delaware’s high court addressed sua sponte, the duty of an attorney not to “sit idly by” while a deponent provides unresponsive and obstructive answers to deposition questions, in the recent decision captioned In re: Shorenstein Hays-Nederlander Theaters LLC Appeals, Nos. 596, 2018 and 620, 2018 (Del. Supr., June 20, 2019). A prior epic explanation of the standards that the Delaware courts impose on participants in a deposition was in the classic decision Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34 (Del. 1994). In the Paramount ruling, the court issued an addendum as a postscript to its decision on the merits to address errant deposition conduct by a lawyer at a deposition. By contrast, the noteworthy decision in this Shorenstein case addresses the duty of counsel representing an errant deponent who engages in inappropriate conduct at a deposition.
The addendum in the Shorenstein case is 20 pages in the slip-opinion format attached to the 51-page opinion on the merits, which involved litigation among limited liability company (LLC) members and their fiduciary duties, as well as an interpretation of the LLC agreement.
The court acknowledged that the addendum had no bearing on the outcome of the case, but it felt it was necessary to address the litigation conduct evidenced in the appeal record—even though it was not raised as an issue on appeal—based on the Delaware Supreme Court’s “exclusive supervisory responsibility to regulate and enforce appropriate conduct of…all lawyers, litigants, witnesses, and others participating in a Delaware proceeding.” See footnote 147.
The Paramount case is famous for its critique of the errant behavior of an attorney at a deposition who the Delaware Supreme Court found had “abused the privilege of representing a witness in a Delaware proceeding by (a) improperly directing the witness not to answer certain questions and (b) being extraordinarily rude, uncivil, and vulgar; and (c) obstructing the ability of the questioner to elicit testimony to assist the court in the pending matter.” The Shorenstein case is a sequel of sorts and addresses a similar situation, although it focuses on the misconduct of a deponent and the obligations of her counsel when faced with such a situation.
Overview of Key Deposition Facts
Fifteen pages of the addendum in the slip-opinion format was a quote from the problematic deposition transcript. A small excerpt deserves to be featured verbatim to provide context:
Q. Did you review any documents to prepare for the deposition?
A. Oh, certainly.
Q. What documents did you review?
A. The ones that were put in front of me.
Q. What were they?
Q. Can you recall any of them?
Q. Tell me which ones.
Q. Great, tell me.
A. Many, many, many.
Q. Tell me about them.
A. Well, they were full of words and communications and…
Q. Can you identify any of them by date or what type of document it is or who the sender or recipient was?
Court’s Admonition and Instructions
The court emphasized that counsel has “a responsibility to intercede” when their client engages in abusive deposition misconduct. Delaware is not the only jurisdiction that enforces high standards for deposition conduct. See, e.g., GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 194-95 (E.D. Pa. 2008), where both the deponent and counsel were sanctioned for extremely abusive, obstructive, and vulgar deposition conduct of the client and where a client’s counsel “persistently failed to intercede” and “sat idly by as a mere spectator to [the client’s] abusive, obstructive, and evasive behavior.”
The addendum to the opinion in Shorenstein can be used as a training manual and as a cautionary tale to train lawyers on deposition skills, as well as provide an example of unacceptable behavior. It will also serve to remind those lawyers admitted pro hac vice in Delaware of the standards that the court will expect of them. Specifically, the court reminded lawyers admitted pro hac vice in Delaware that they are bound not only by the Delaware Lawyers’ Rules of Professional Conduct, but they also must have reviewed and must observe the Principles of Professionalism for Delaware Lawyers, which prohibit conduct that “unnecessarily delays matters or is abusive, rude, or disrespectful.” Delaware courts have revoked pro hac vice admissions of lawyers whose behavior has been “repugnant to the court’s ideals of civility and candor.” Lendus, LLC v. Goede, 2018 WL 6498674 at *8 (Del. Ch. Dec. 10, 2018).
Delaware’s high court emphasized that Delaware lawyers must “ensure that out-of-state counsel understands what is expected of them in managing deposition proceedings outside the courthouse so that the litigation process is not abused.” See footnote 172 (citing to Delaware Court of Chancery Rule 170(b)). The court in Shorenstein described as substandard behavior the failure of the attorney for the deponent to “put an end to” the deponent’s “flagrantly evasive, non-responsive, and flippant answers.”
The trial court appropriately awarded attorneys’ fees and costs for the willful bad faith litigation tactics of the deponent, which the court described as making a “mockery of the entire deposition proceeding.”
The Delaware Supreme Court further instructed that depositions are “court proceedings, and counsel defending the deposition have an obligation to prevent their deponent from impeding or frustrating a fair examination.” The court also observed that under the rules of court in Delaware, because counsel are not permitted to engage in conferences with the deponent during the deposition except for very limited exceptions, such as asserting a privilege, the deponent will need to be prepared with these instructions prior to the deposition.
As a practical matter, it is not uncommon for deponents and lawyers not to follow the high standards described by the court in this opinion. Bringing these matters to the attention of the court often makes the deposition more expensive and requires additional time to retake the deposition, which is not always a logistical option in expedited proceedings. The challenge in the average case, however, is how to address errant conduct that is not as clearly egregious as the deposition in this matter. Among the options to consider are conducting a “meet and confer” off the record with opposing counsel; calling the judge assigned to the case in the middle of the deposition; providing a copy of the Shorenstein case to the offender, either off the record or on the record; or filing a motion after the deposition is over. The choice may be affected by several factors, such as the economics of the case and the reputation of the judge assigned to the case as one who takes these issues seriously or not.
Francis G.X. Pileggi, Esquire, is a litigation partner and vice chair of the Commercial Litigation Practice Group at Eckert Seamans Cherin & Mellott, LLC. He comments on key corporate and commercial decisions and legal ethics rulings at www.delawarelitigation.com.