We recently reported on a federal deposition sanction case in which the attorney was sanctioned.  Here in Cameron Industries v. Mother Work plaintiff’s attorney skirts ever so close to sanctions.  He helps out, answers questions for his client, and clariies endlessly.  No sanction, however.

"If an attorney concludes that a deposition "is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress," application can be made to the court for relief. Fed.R.Civ. P. 30(d) (4). In order to ensure that this remedy will provide relief in an effective and practical manner, I invited counsel in this case, as I do in all cases in which I supervise discovery, to call my chambers for a ruling if they have a dispute at a deposition that they cannot resolve.

As any practitioner unfortunately knows, adherence to the foregoing rules rarely occurs.1

The conduct of plaintiff’s counsel here was plainly inconsistent with the foregoing rules. The excerpts quoted above demonstrate that plaintiff’s counsel volunteered information to the witness, made unnecessary, unjustified and unprofessional remarks concerning defendant’s counsel, made unnecessary and suggestive speaking objections, improperly posed his own questions during defendant’s direct examination instead of conducting cross-examination, contradicted the witness’s testimony and issued instructions to the witness not to answer questions on the grounds of irrelevance. Plaintiff’s counsel claims in his opposition to defendant’s motion that his interruptions were necessary to insure an accurate record. This response, however, overlooks what should be obvious. The Federal Rules of Civil Procedure provide two mechanisms to correct or clarify deposition testimony, namely cross-examination and through submission to the witness for review. Fed.R.Civ.P. 30 (e). Since the Rules establish the procedures to be used to clarify or correct testimony, neither counsel nor the court are simply not free to ignore them and create new procedures based on personal preference.

Although plaintiff’s counsel’s conduct was improper and unbecoming, it does not, however, follow that an award of sanctions is appropriate. Under 28 U.S.C. §1927, an award of sanctions is appropriate when the offending attorney "essentially destroys a deposition through excessive groundless objections or lengthy personal attacks on his or her adversary." Am. Fun & Toy Creators, Inc. v. Gemmy Indus., Inc., 96 Civ. 799 (AGS) (JCF), 1997 WL 482518 at *8 (S.D.N.Y. Aug. 21, 1997); accord Sicurelli v. Jeneric/Pentron, Inc., 03 CV 4934 (SLT) (KAM), 2005 WL 3591701 at *3 (E.D.N.Y. Dec. 30, 2005), report & recommendation adopted by, 2006 WL 681212 (E.D.N.Y. Mar. 14, 2006); Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). Fed.R.Civ.P. 30(d) (3) provides that an award of sanctions is appropriate "[i]f the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent."

I have reviewed the transcripts of the Waldman and Khayyam depositions in their entirety. Although some of the conduct of plaintiff’s counsel is indefensible, his conduct cannot accurately be described as destroying either deposition or as frustrating the fair examination of the deponents."