Professionalism in Depositions

The Importance of Local Practice and Common Courtesy

By Angela D. Lydon

Professionalism In DepositionsPRO HAC VICE Admission is an invaluable tool when a client seeks your counsel for an out-of-state matter. Normally, a review of the local rules and adherence to generally accepted practices are sufficient to enable a successful appearance. However, a recent case from the Northern District of Iowa illustrates that practicing in an unfamiliar jurisdiction can be far from straightforward. Even defending a deposition – an act which few seasoned lawyers would consider daunting – can have serious, unintended consequences for an outsider who does not understand the court’s (sometimes unwritten) customs and preferences.

The Security National Case

In Security Nat’l Bank Labs. Of Sioux City v. Abbott Laboratories, 2014 U.S. Dist. LEXIS 102228 (N.D. Iowa July 28, 2014), Judge Bennett recently sanctioned a well-respected, out-of-state lawyer for what he characterized as “obstructionist” deposition conduct. The opinion was noteworthy for several reasons, not the least of which is the fact that Judge Bennett took issue with counsel’s repeated use of “objections as to form” without offering any grounds for the objection. In Judge Bennett’s view, “form” objections are improper because they merely refer to a “category of objections” that includes leading, lack of foundation, assuming facts not in evidence, non-responsive answer, and witness’ answers that were beyond the scope of the question. According to Judge Bennett, “form” objections “are inefficient and frustrate the goals underlying the Federal Rules because they contain no information about a question’s alleged defect and make it difficult or impossible for a reviewing court to determine whether the objection was proper or frivolous.

Judge Bennett is not alone in his view that “form objections are inappropriate. For example, Cuyahoga County Court of Common Please Local Rule 13.1 provides: “Counsel may interpose an objection by stating ‘objection’ and the legal grounds for the objection.” Several judges agree that “form” objections merely refer to a category of objections. See, e.g., NGM Ins. Co. v. Walker Const. & Dev., LC 2012 U.S. dist. LEXIS 177161, at *2 (E.D. Tenn. Dec 13, 2012) (explaining that “form” objections refer to objections to leading questions, a lack of proper foundation, questions assuming facts not in evidence, and argumentative questions.”); Rakes v. Life Investors Ins. Co. of Am., 2008 U.S Dist LEXIS 10996, at *5 (N.D. Iowa Feb. 14, 2008) (permitting the objection “to state in a few words the manner in which the question is defective as to form(e.g., compound, vague as to time, misstates the record, etc.)”).

Conversely, many judges condone or even prefer the sue of unspecified “form” objections. See, e.g., Cincinnati Ins. Co. v. Serrano, 2012 U.S. Dist. LEXIS 1363, at *5 (D. Kan. Jan. 5, 2012) (objections to vagueness “should be limited to an objection ‘to form,’ unless opposing counsel requests further clarification); Druck Corp v. Macro Fund (U.S.) Ltd., 2005 U.S. Dist. LEXIS 16721, at *4 (S.D.N.Y. Aug 12, 2005) (“[A] ny ‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason.”); Turner v. Glock, Inc., 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004) (“All other objections to questions during an oral deposition must be limited to ‘Objection, leading’ and “Objection, form.”’); In re St. Jude Med., Inc., 2002 U.S. Dist. LEXIS 28020, at *5 (D. Minn. May 24, 2002) (“Objecting counsel shall say simply the word ‘objection’ and no more, to preserve all objections as to form.”); Auscape Int’l v. Nat’l Geographic Soc’y, 2002 U.S. Dist. LEXIS 16675, at *1 (S.D.N.Y. Sept. 6, 2002) (“Once counsel representing any party states, ‘Objection’ following a question, then all parties have preserved all possible objections to the form of the question.”)

This difference in opinion among judges may be attributed to the fact that the Federal Rules of Civil Procedure are far from clear on this issue. Rule 30 (c)(2) of the Federal Rules of Civil Procedure provides: “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Fed. R. Civ. P. 30 (c)(2) (emphasis added). Rule 32 (d)(3) cautions that certain objections are waived if not timely made during the course of the deposition, including those objections that “relate [] to the manner of taking the deposition” and the “form of a question or answer.” Fed. R. Vic P. 32(d)(43) (emphasis added). The advisory committee notes add that “objections on grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer” must be made at the time of the deposition. Based on this language, “many lawyers – and courts for that matter – assume that uttering the word ‘form’ is sufficient to state a valid objection.” See Security Nat’l Bank.

Giving the conflicting precedent, Judge Bennett did not sanction the out-of-state attorney specifically for her use of “form” objections. Instead, he stated, “lawyers should consider themselves warned: Unspecified ‘form’ objections are improper and will invite sanctions if lawyers choose to use them in the future.”

Judge Bennett was not so tolerant, however, in addressing the attorney’s overall behavior during the deposition. Indeed, he sua sponte imposed sanctions on the attorney and her firm for obstructionist deposition conduct,” explaining that the improper “form” objections “amplified two other issues: witness coaching and excessive interruptions.” Judge Bennett explained that he was “shocked” by the out-of-state attorney’s hundreds of unnecessary objections and interruptions during deposition questioning. Most of the objections were meritless and often influenced the witnesses’ responses: “Counsel’s improper objections, coaching and interruptions went far beyond what judges should tolerate of any lawyer, let alone one as experienced and skilled as counsel.”

Local Implications of the Security National Case

Cuyahoga County Court of Common Pleas Judge Michael P. Donnelly shares Judge Bennett’s desire to curb unprofessional conduct during depositions. Judge Donnelly is committed to advancing the ideals of professionalism throughout all facets of our legal system. To that end, he is a member and (and two-time former chairman) of the Ohio Supreme Court’s Commission on Professionalism.

Judge Donnelly noted that the Ohio Supreme Court’s Commission on Professionalism considers unprofessional conduct during depositions a serious and growing problem. In his opinion, unprofessional deposition conduct not only adds unnecessary delay and expense to litigation, but also erodes public confidence in attorneys and the entire judicial system. He expressed his disappointment over the fact that YouTube has become riddled with videos showcasing unprofessional attorney conduct during depositions.

In an effort to deter obstructionist deposition conduct, the commission published the “Do’s and Don’ts of Depositions.” Ohio Supreme Court Commission on Professionalism, Professionalism Do’s and Don’ts: Depositions, (last visited 9/26/14). This publication begins: “If there is one area of the practice of law that consistently gives rise to an inordinate number of complaints about lack of professionalism, it is the area of depositions.” The guidelines include the following: (1) do arrive on time; (2) do be prepared, having multiple copies of all pertinent documents available; and (3) don’t “engage in conduct that would be inappropriate in the presence of a judge.” Cuyahoga County Local Rule 13.1 (I) incorporates these guidelines and conveys the expectations that “all attorneys practicing before the Court … adhere to the best practices contained in this document.”

Judge Donnelly and Judge Bennett agree that judges must demonstrate their willingness to sanction attorneys for unprofessional and improper deposition conduct. Judge Donnelly stated that ‘it is incumbent upon the bench to take a stand against obstructionist discovery conduct.” Similarly, Judge Bennett wrote in Security Nat’l Bank that “[u]nless judges impose serious adverse consequences, like court-imposed sanctions,” these discovery abuses will continue to occur because obstructionist discovery tactics will continue to succeed.

However, Judge Donnelly believes professionalism is a shared responsibility; “Attorneys must also be willing to stand against unprofessional deposition conduct.” He advises attorneys to create a record of all unprofessional conduct that occurs during depositions. An accurate record enables the court to take corrective action, if necessary.

Judge Donnelly also urges attorneys to keep the court apprised of discovery disputes. He believes judges must remain accessible to the attorneys practicing before him or her. To that end, he makes it a priority to be available to litigants during all phases of litigation, including discovery. While most judges, including Judge Donnelly, frown upon discovery disputes, it is often easier to call the court to resolve an issue during a deposition rather than engage in costly and time-consuming motion practice thereafter.

In conclusion, the Security Nat’l Bank opinion serves as a useful reminder: Not only are attorneys required to zealously represent their clients, but they are also required to uphold certain professional standards. The importance of becoming familiar with local practice and using civility and respect during depositions cannot be overstated.

Angela D. Lydon is an associate in Frantz Ward’s Litigation Practice Group. Angela handles a broad mix of general litigation issues, including business torts, breach of contract and warranty claims, and products liability. She has been a CMBA member since 2012. She can be reached at (216) 515-1670 or

Angela would like to thank Hon. Judge Michael P. Donnelly of the Cuyahoga County Court of Common Pleas for donating a substantial amount of time to answering her questions and offering his invaluable advice and opinions for use in this article. Judge Donnelly has been on the bench since 2005. Prior to serving as a judge, Judge Donnelly was in private practice and served as an assistant county prosecutor.

This article has been republished with permission by the Cleveland Metropolitan Bar Association.

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