Uncooperative Deposition Witness

Misconduct occurs by both witnesses and opposing counsel in depositions.  What is to be done with the abusive and unresponsive witness?  To paraphrase the court in GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 184 (E.D. Pa. 2008), uncivil conduct by a witness at a deposition is “less discussed . . . but nonetheless just as pernicious” as misconduct by counsel.  The GMAC Bank case addresses “the duty of counsel who is confronted by uncivil conduct by his own witness.”  Id.  The discussion is too lengthy to quote, but here is a sample of what happened in the case.  The deposition was twelve hours long.  In the deposition, the ‘f-word’ “and variants thereof” were used by the witness no fewer than 73 times.  Id. at 187.  The court’s “impression” was that the “language was chosen solely to intimidate and demean” the examining lawyer.  Id.  According to the court, this was “confirmed” by the witness’s “repeated references to himself as ‘the professor’ and a ‘doctor of law,’ and repeated expressions of his belief that [the examining lawyer was] a ‘joke’ and a ‘[f___ing] idiot.”  Id. at 187.  

In light of these fact, the court imposed sanctions.  In a thorough and analytical opinion, the court required that the witness be deposed again, under the supervision of a magistrate judge.  Id. at 193.  The witness and his lawyer were held jointly and severally liable for the examining party’s fees and expenses incurred in presenting the motion, and in preparing for and conducting “the portion of the deposition sessions . . . that was frustrated by” the witness’s conduct.  Id. at 194.  In sanctioning the defending lawyer, the court was critical of the fact that he (according to the opinion) “sat idly by,”  “incorrectly directed the witness not to answer,” and was observed (on at least one occasion) “chuckling at [the witness’s] abusive behavior toward [examining] counsel . . . .”  Id. at 195 & n.17.  “An attorney faced with such a client cannot . . .  simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down.”  Id. at 195 (citation omitted).