Hinshaw reports this case in which the court sanctioned four attorneys for conduct at a deposition, including one who instructed his client not to answer outrageous questions but who neither claimed a protected privilege nor applied for a protective order under FRCP 30(d).
"The court described this case as a “grudge match.” Id. at *1. Harvey C. Welch represented Erik Redwood in a criminal prosecution for battery. Mr. Redwood was convicted, and blamed Mr. Welch for ineffective assistance of counsel. In October 1998 Mr. Redwood, a white man, called Mr. Welch, a black man, a “shoe shine boy,” which led to a physical confrontation. A grand jury returned an indictment for a hate crime against Mr. Redwood. In addition, Mr. Redwood filed a battery claim in state court and Mr. Welch filed a defamation counterclaim. In the civil action, Mr. Redwood was represented by his wife, attorney Jude Redwood, and Mr. Welch was represented by Marvin Gerstein. The civil case ultimately settled and the criminal prosecution was dismissed.
The Redwoods then filed this federal civil rights action against the prosecutor in the hate crime case, Elizabeth Dobson, as well as Mr. Welch, Mr. Gerstein, the City of Urbana and one of its police officers. The Redwoods alleged the defendants’ actions violated their first amendment rights by discriminating against Mr. Redwood’s religion.
The deposition became heated when Mr. Danner began questioning Mr. Gerstein about his past criminal record, his prior problems with the state bar, his mental health, whether he had engaged in homosexual conduct and whether he was involved in any type of “homosexual clique” with other defendants in this action. Id. at *4. Richard Klaus, representing Ms. Dobson, stated his opinion that Mr. Danner had committed a misdemeanor under Illinois law by asking questions about Mr. Gerstein’s mental health. Mr. Webber stated that the questioning violated Rule 30 because is was intended to harass, and instructed Mr. Gerstein not to answer. Mr. Webber did not, however, follow the procedure outlined in FRCP 30 by claiming a protected privilege or making a motion for a protective order.
Things got even worse after a break was taken and Mr. Gerstein was questioned about whether he had consulted with his attorney during the break. Mr. Gerstein began playing “word games” and claimed “amnesia” regarding what discussions he may have had or what the word “consult” meant. Although the court did not review a videotape of the deposition, the Redwoods claimed that Mr. Gerstein gave Mr. Danner “the finger” during the deposition as well. Id. at *4.
The court found Mr. Danner’s conduct at the deposition shameful. Id. at *5. The court, however, did not limit its criticism to Mr. Danner. “Mutual enmity does not excuse the breakdown of decorum that occurred at Mr. Gerstein’s deposition. Instead of declaring a pox on both houses, the district court should have used its authority to maintain standards of civility and professionalism. It is precisely when animosity runs high that playing by the rules is vital. Rules of legal procedure are designed to defuse, or at least channel into set forms, the heated feelings that accompany much litigation. Because depositions take place in law offices rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control.” Id. at *5. "