MCLE Self Study
Edited by Barbara Kate Repa
EthicsTen Commandments of Deposition Ethics
By Daniel E. Eaton
In civil cases, deposing a key witness is always an important pretrial event. Entire books have been written about how to take and defend depositions effectively. But attorneys' ethical obligations in the deposition process are seldom discussed and defined. The following commandments explain how guidelines and applicable law direct attorneys to behave.
I. Thou Shalt Not Coach the Witness
There is no specific Rule of Professional Conduct that prohibits coaching a deponent. However, once a deposition begins, it is generally understood that a witness must be left "on his or her own." (Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D.Pa. 1993); see also, Preamble to San Diego Rules of Court, Div. II, Civil, ¶ 4; Los Angeles Sup. Court Rule 7.12(e)(8).) It is not adequate to maintain that one lawyer's coaching is another's zealous protection of a client's interests. If that line is pushed too hard, the remedy for the opposing lawyer is either to seek a formal protective order from the court, which could lead to a right to redepose the witness, or proceed informally through ex parte proceedings with the other side present. Some judges even allow phone calls to chambers to resolve such disputes, but, given heavy caseloads, that should be reserved for the most egregious and disruptive coaching.
If there is a concern that this behavior may occur, consider seeking a stipulation signed by the court setting out the ground rules for how depositions will be conducted, including whether objections about the form of the questions will be preserved for trial.
II. Thou Shalt Not Bully
Under California Code of Civil Procedure section 2023(a)(3), which sets out sanctions for misusing discovery, it is misconduct to use discovery in a manner that "causes unwarranted annoyance, embarrassment, or oppression, or undue burden or expense." Other behavior that can be sanctioned under subsection 5 of that provision is making, "without substantial justification, an unmeritorious objection to discovery." Though there are at least as many forms of bullying as there are of coaching, certain forms fall into one or both of these categories. Examples include using profanity, yelling at the witness or an attorney, and taking excessive or lengthy breaks.
Moreover, the local rules in several jurisdictions require attorneys to "conduct themselves in discovery proceedings in the same manner as they would if a judicial officer were present." (Preamble to San Diego Rules of Court, Division II, Civil, ¶ 4; Los Angeles Sup. Court Rule 7.12(e)(8).) Using profanity, insulting opposing counsel, and generally being uncivil is the kind of behavior that would not ordinarily occur if a judge were present.
A deposition may be an intense, face-to-face showdown involving opposing sides of a dispute and one witness. But the absence of a referee does not change the rules of decorum in proceedings, every word of which is being recorded and one day may be read by a judge.
III. Thou Shalt Not Threaten to Report Opposing Counsel to the State Bar
No matter how bad opposing counsel's conduct gets, it clearly violates the Rules of Professional Conduct to threaten to report him or her to the State Bar. Rule of Professional Conduct 5-100(A) states that an attorney "shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." The same rule bars threats to report the opposing party to the police if the civil lawsuit is not dropped. An attorney who threatens to report an opponent to the State Bar for odious behavior at a deposition should not be surprised if the adversary calls the bar first.
IV. Thou Shalt Meet and Confer if There Is a Dispute
If a deponent fails to answer a question or produce a document specified in a deposition notice or subpoena, a party seeking discovery may move to compel the answer or the document, but only when there has been "a reasonable and good faith attempt at an informal resolution of any issue presented by the motion." A motion to compel must be made no later than 60 days after the record of the deposition is complete. (Cal. Code Civ. Proc. § 2025(o).) The "proper time, manner, and place" for the "meet and confer" is left to the parties to determine. (Townsend v. Superior Court, 61 Cal. App. 4th 1431, 1438 (1998).) Thus, one attorney may not compel the other to meet and confer about a deposition dispute on the spot, though nothing precludes the two sides from agreeing to do so.
The meet and confer must also be sober and serious. According to one court, a "reasonable and good faith attempt at informal resolution entails something more than bickering with deponent's counsel at a deposition. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (Townsend, 61 Cal. App. 4th at 1439; see also, Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 120 (D. Nev. 1993).)
Failing to make adequate meet and confer efforts may, but not necessarily will, result in outright denial of the requested discovery. In Obregon v. Superior Court, the court discussed the Townsend decision and held that a judge has broad discretion to craft a remedy in response to motions to compel, including specifying "additional efforts which will be required before the court will turn to the merits of the discovery dispute." (67 Cal. App. 4th 424, 434-35 (1998).)
V. Thou Shalt Honor Opposing Counsel's Privileged Material
Don't peek at privileged material-before, during, or after the deposition. That is not as simple as it sounds, especially if the privilege is at all unclear. For example, an attorney who receives information that apparently is privileged and that apparently was produced inadvertently should take two steps to avoid disqualification: refrain from reviewing more of the materials than necessary to determine their privileged nature, and immediately notify the sender of the receipt of the apparently privileged material. (State Comp. Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644, 656 (1999).)
There is no attorney-client privilege over client communications used to secure a lawyer's services to commit a crime or a fraud. (Cal. Evid. Code § 956.) But bear in mind that unlike the attorney-client privilege, there is no crime-fraud exception to the attorney work-product rule. (See, BP Alaska Exploration, Inc. v. Superior Court, 199 Cal. App. 3d 1240, 1249 (1988).) Therefore, you may not be justified in using an opposing attorney's work product to prove criminal misconduct. The California Supreme Court is currently reviewing the question of whether a lawyer who obtains such materials and then shares them with colleagues and experts must be disqualified. (Rico v. Mitsubishi Motors Corp., 14 Cal. Rptr. 3d 210 (2004).)
VI. Thou Shalt Not Speak to Your Client Loudly Enough for Opposing Counsel to Hear
A corollary to the commandment not to snoop is the commandment not to be reckless with attorney-client privileged communications. A deposition is one of the few occasions when the attorney and client will be in the presence of opposing counsel outside of court.
A client may waive the protection of the attorney-client privilege by disclosing privileged information or by consenting to having it disclosed. (Cal. Evid. Code §§ 912 and 953(a).) The protection of that privilege may be waived if an uncoerced disclosure is made to the other side, perhaps even if the disclosure is inadvertent. In Jasmine Networks, Inc. v. Marvell Semiconductor, Inc., the court of appeal held that even if the privilege had not been waived, the crime-fraud exception would have defeated the privilege because the party executives and their counsel had discussed the possibility of stealing the opposing party's trade secrets. (12 Cal.Rptr.3d 123, 131 (2004).) Like Rico, Jasmine Networks, Inc. is currently on review by the California Supreme Court. (See, 16 Cal. Rptr. 3d 330.)
This commandment is not intended as an invitation for you to eavesdrop on the conversations between opposing parties and counsel during breaks in a deposition. However, there also is no reasonable expectation of privacy in a loud, public conversation. (People v. Von Villas, 11 Cal. App. 4th 175, 221 (1992) (holding that a husband and wife had no justifiable expectation of privacy for purposes of asserting the marital privilege when they spoke loudly through Plexiglas in a jail visiting room with full knowledge that a guard was watching them).)
A conference with a client during a deposition should be held in a place, and at a volume, that will ensure opposing counsel will not be able to overhear.
VII. Thou Shalt Use Caution in Contacting Your Adversary's Employees, Officers, or Directors
The controlling rules require getting an adversary's permission before contacting those represented and related to the case. For example, California Rule of Professional Conduct 2-100(A) states: "While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer." And Rule 2-100(B)(1) makes it clear that party for purposes of that rule includes an officer, director, or managing agent of the corporation.
Two cases out of the Fourth District Court of Appeal recently addressed this rule. In Snider v. Superior Court, the court vacated an order disqualifying counsel who had ex parte contact with two of the opposing party's employees. It held that the term managing agent in Rule 2-100 refers to employees who "exercise substantial discretionary authority over decisions that determine organizational policy" and that the two employees contacted did not meet that test. The court also held that Rule 2-100 had not been violated because there was no showing that the contacting attorney had actual knowledge the employees were represented by corporate counsel. The Snider court cautioned that "where an attorney has reason to believe that an employee of a represented organization might be covered by Rule 2-100, that attorney would be well advised to either conduct discovery or communicate with opposing counsel concerning the employee's status before contacting the employee." Failure to do so may result in disqualification, especially if privileged information is disclosed. The Snider court also specified that "once actual contact is made, an attorney should first ask questions that would establish the employee's status within an organization before moving to substantive questions." (113 Cal. App. 4th 1187 (2003).)
The Fourth District extended that rule in a recent case to allow contact between counsel for plaintiff minority owners and directors of a corporation allied with plaintiffs and in conflict with the corporation when plaintiffs' counsel secured the permission of the directors' counsel but not the corporation's counsel. The court pointed out that corporate counsel could not ethically represent both the dissident directors and the corporation. (La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court, 121 Cal. App. 4th 773 (2004).) In any event, there was no showing that the directors disclosed confidential information to the plaintiffs' counsel in violation of their fiduciary duties.
The rule that emerges from these cases does not authorize unfettered ex parte contacts with agents of adversaries. Both decisions rested on alternative grounds: one that there was no actual knowledge of representation, the other that there was no showing of confidential information being disclosed. The point is to exercise a great deal of caution when speaking with those affiliated with adversaries outside of a deposition. You want to avoid having to explain to a court why such contacts should not require disqualification.
VIII. Thou Shalt Exercise Caution in Representing Conflicting Interests
A corollary to the rule about ex parte communications with agents is to beware when representing conflicting interests in a deposition. One of the reasons the court allowed the contact in La Jolla Cove Motel was that it would have violated Rule of Professional Conduct 3-600, which circuitously allows a lawyer to represent the constituents of an entity only consistent with Rule 3-310. That rule prohibits accepting representation of potentially or actually adverse interests without the informed written consent of each. (Rule 3-310(C).) Failure to follow that rule could lead to disqualification-so careful analysis, and the required consents, should precede an offer to represent a constituent at a deposition.
IX. Thou Shalt Not Treat the Court Reporter as a Confidante
A court reporter is a neutral third party with a defined function in a deposition. (Cal. Code Civ. Proc. § 2025(k).) He or she is prohibited from commenting on "the demeanor of any witness, attorney, or party present at the deposition." (Cal. Code Civ. Proc. § 2025(k)(3).) No attorney should ask a court reporter to violate those statutory ethical obligations. At least as important, an attorney should not share personal observations or allow clients to share their observations about the witness, opposing counsel, or theory of the case with the court reporter. There is no attorney-court reporter privilege.
An opposing counsel who overhears or otherwise learns of such a conversation may argue that those comments may be used against the disclosing counsel's client because any work-product protection was waived. Any comments made by a client to a court reporter, of course, are directly discoverable.
X. Thou Shalt Not Ask the Court Reporter for Special Favors
Generally, what is offered to one party in a deposition must be offered to all parties. For example, the controlling statute explicitly states that if one party requests an advance copy of a deposition, the court reporter must "immediately notify all other parties attending the deposition of the request" and make a copy of the full or partial deposition transcript available to all parties at the same time. (Cal. Code Civ. Proc. § 2025(p).)
The court reporter is also prohibited from going "off the record" without the agreement of all parties present, unless a party or deponent requests suspension of the proceedings to obtain a protective order "on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party." (Cal. Code Civ. Proc. § 2025(n).) Asking for special favors based on a long-standing relationship with a particular court reporter invites the reporter to disregard statutory duties of neutrality.
Daniel E. Eaton is a shareholder at the firm of Seltzer Caplan McMahon Vitek in San Diego and chair of the San Diego County Bar Association Legal Ethics Committee.