Here is a New York Law Journal article on application of the New Rules on Depositions.
"Most practicing attorneys in New York have experienced obstructive behavior from their adversaries during a deposition. Obstructive behavior can take the form of directing the witness not to answer or of speaking objections, where the attorney infers or influences the desired answer from his or her client.
This type of conduct threatens an attorney’s ability to take a thorough deposition and is quite often dealt with by calling judges in their chambers or motions to compel an answer resulting in further deposition and an unnecessary expenditure of resources.
The New Rule
As a result of this abusive practice, a new Part 221 of the Uniform Rules for Trial Courts was authored and took effect on Oct. 6, 2006. The new rule reads as follows:
PART 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS
§221.1 Objections at Depositions
(a) Objections in general. No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR.
(b) Speaker objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.
§221.2 Refusal to answer when objection is made
A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefore. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition.
§221.3 Communication with the deponent
An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in §221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.
Obstreperous conduct has never been permitted at a deposition. Courts have long held that the proper procedure during the course of an examination before trial is to permit the witness to answer all questions posed, subject to objections pursuant to subdivisions b, c and d of CPLR Rule 3115, unless a question clearly violates of the witness’s constitutional rights or of some privilege recognized in law, or is palpably irrelevant. See O’Neill v. Ho, 28 AD3d 626, 814 NYS2d 202 (2d Dept. 2006); Mora v. St. Vincent’s Hospital, 8 Misc3d 868, 800 NYS2d 298 (Sup. Ct. N.Y. Co. 2005).
Interpretation of New Rules
As stated by §221, no objections are permitted at depositions now except for those made under CPLR Rules 3115(b), (c), or (d). Objections under CPLR Rule 3115(b) pertain to the form of the question. Such an objection should be made contemporaneously with the question otherwise it will be deemed waived. The deposing attorney has an opportunity to rephrase the question or allow the witness to answer it, thus risking the granting of the objection and the striking of any testimony that resulted from an improperly phrased question. Part 221 removes certain discretion previously reserved to lawyers under the CPLR. CPLR Rules 3113(b) and 3115(a) allow the lawyer to interpose all objections at the deposition, but does not require it. Section 221.1(a) now prevents a lawyer from asserting an objection at a deposition unless it would be waived at trial under CPLR Rules 3115(b), (c) or (d). In other words, this subsection confines the type of objections that can be made under the CPLR.
CPLR Rule 3115 (c), deals with objecting to the qualification of the person taking the deposition. CPLR Rule 3115(d) addresses objecting to the competency of the witness or admissibility of testimony and provides that objections regarding the same are not waived by failure to object "unless the ground of the objection is one which might have been obviated or removed if objection had been made at that time."
Section 221.1(b) specifically precludes an attorney from making a speaking objection and suggesting an answer to the deponent. An attorney is required to make a succinct statement as to the objection and include a clear statement as to any defects with the questions. Before enactment of this rule, it was common practice for attorneys defending depositions to include colloquies with their objections in an attempt to influence the deponents answer. Section 221.1(b), by design, is drafted to prevent these types of interference. Now that the rule is in place, it will be up to the courts to enforce §221.1(b) and it will be interesting to see how the judiciary handles violations of this new provision. A strict interpretation of this provision will require many practicing attorneys to adapt their approach in defending a deposition.
Section 221.3 prohibits an attorney from interrupting the deposition to communicate with a deponent unless all parties consent or the communication is made to determine whether the question should or should not be answered under §221.2. Once again, it will be up to the courts to set the tone and effectiveness of this provision, especially because the type of behavior precluded in §221.3 is occurred more than it should before the enactment of Part 221.
Part 221 is an attempt by the Judiciary Committee to take the body of already established law and state it in one clear and unambiguous document to make the practice of taking and defending depositions uniform across the state and generally more productive. However, even with Part 221, there is potential for confusion.
Section 221.2 prohibits an attorney from directing a deponent from answering a question unless to the extent permitted by CPLR Rule 3115 or §221.2. Section 221.2 allows an attorney to direct a deponent not to answer a question under the limited circumstances: "(i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of the court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person.
The last part of this section leaves room for infinite interpretation. What is "plainly improper" and what does it mean if a question is answered, it would "cause significant prejudice to any person"? All examiners in an adversarial process try to illicit information that would cause significant prejudice to their opponent.
Application of New Rules
Nassau County Supreme Court Justice William R. LaMarca, in an unpublished decision dated Oct. 19, 2006, held that under the new §221, a line of questions regarding whether a plaintiff in a trip-and-fall accident had previously been treated for alcohol abuse was improper and plaintiff’s counsel was justified in directing the plaintiff not to answer these questions at the deposition. Alma v. JSC Pizzeria Corp. (Sup. Ct. Nassau County 2006, Index No. 14382/04). According to Justice LaMarca, because there was no indication that the plaintiff had consumed any alcohol for 48 hours prior to the accident, the questions were improper and otherwise protected by the physician-patient privilege.
In Adams v. Rizzo, 13 Misc3d 1235(A), 2006 WL 3298303 (Sup. Ct. Onondaga County, Nov. 13, 2006), the court directed plaintiff’s counsel to pay for all costs associated with a further deposition due to his abusive conduct and §221 violations at an initial deposition of the plaintiff. In Adams, the plaintiff’s attorney regularly instructed his witness not to answer questions and added insulting phrases such as, "Don’t answer questions about your background other than your three kids. Just because he asks a question, trust me, especially this lawyer, doesn’t mean it’s a proper question." Ms. Adams is the mother of three children who allegedly were injured by exposure to lead-based paint. Ms. Adams was not a direct plaintiff, rather the representative of the children. Id. Examination regarding her background was nonetheless deemed proper and considered an abuse by plaintiff’s counsel to direct the deponent not to respond.
As evinced by Adams and Alma, what is or is not a proper line of questioning under §221.2(iii), is still open to broad interpretation and may continue to lead to abuses by attorneys. The penalty for obstructive behavior at a deposition is also discretionary.
Striking a pleading, the most drastic penalty, and perhaps the best way to prevent obstructionist behavior is not available. O’Neill v. Ho, 28 AD3d 626, 814 NYS2d 202, (2d Dept. 2006) (holding that striking a pleading is too harsh a penalty for obstreperous conduct at a single deposition session). The Appellate Division, Second Department in O’Neill ordered the defendant to pay $1,500 to compensate the plaintiffs’ counsel for the time expended and costs incurred in connection with the aborted deposition session. In Adams, the court, similarly ordered plaintiffs’ counsel to pay all costs associated with a further deposition of including the cost of the stenographer.
Part 221 pertaining to the conduct of attorneys at depositions is an idealistic approach to address recurring problems. However, it is up to the New York state courts to give it "teeth." From a practical standpoint, the obstructive behavior of attorneys will not change unless the courts enforce the rules as is typically done in federal court. If the courts do not take a hard line in enforcing Part 221, nothing will change and abusive tactics will continue prevail over the concept of open discovery in the state court deposition arena. "