Quinn Emanuel reports this case:  In a federal legal malpractice and section 1983 case, plaintiff’s attorney asked deposition questions of defendant which were intended to harass.  Defendant’s attorney told his client not to answer, and ran afoul of the 7th circuit.  They said he should have walked out and moved for a protective order.

"During a deposition, plaintiff ’s counsel asked a witness whether he had ever been “ordered to obtain psychiatric counseling or anger-management therapy.” The lawyer also asked whether the witness had ever engaged in homosexual conduct or been in any type of “homosexual clique with any other defendants” in the action. Id. at 468. The attorney defending the deposition instructed the witness not to answer on the basis that the questions were designed to harass. Id. Plaintiff then moved for sanctions based on the refusal to answer questions.

The district court concluded that “everyone had behaved badly and that, because [plaintiff ’s counsel] was the greater offender, no sanctions would be appropriate.” The district judge added that under the circumstances it was “ludicrous” for plaintiff to argue that “lawyers may not instruct witnesses not to answer.” Id. at 469.

The Seventh Circuit agreed that the questions were, undoubtedly, designed to harass, that plaintiff ’s counsel made no effort to establish how the lines of questioning could lead to admissible evidence, that the witness “would have been entitled to stalk out of the room,” and that his lawyer “could have called off the deposition and applied for a protective order (plus sanctions).” Id. at 468. The court, nonetheless, censured the deponent’s attorney for conduct unbecoming a member of the bar. As the Seventh Circuit explained, when there is harassment, “[c]ounsel for the witness may halt the deposition and apply for a protective order” pursuant to Federal Rule of Civil Procedure 30(d)(4). But he “must not instruct the witness to remain silent.” Id. at 467-68. Instead, “[a] person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” Id. The Seventh Circuit made clear that this bright line rule applies no matter how outrageous or harassing the line of questioning. "