The Devine Millimet Medical Malpractice team reviewed some historic and, increasingly, current types of discovery conduct that have landed clients and their lawyers in public, embarrassing, and expensive situations. We want our clients and colleagues to understand that advocacy, especially in the deposition context, has very firm limits.
I. Historical Background
The most important published decision about discovery misconduct in the context of medical malpractice is, without a doubt, the unfortunate case of Phinney v. Paulshock, et al., 181 F.R.D. 185 (D.N.H. 1998). This decision, issued after a five-day evidentiary hearing, was based on numerous types of alleged discovery misconduct by defendants, Atlantic Anesthesiology (“AA”), a partner in AA’s practice, Dr. Paulshock, and their lawyer, Ken Bouchard.
Mr. Phinney, age 38, died during brain aneurysm surgery. The anesthesia team included Dr. Paulshock and a nurse anesthetist who were employees of the corporate defendant AA. After Paulshock left the operating room, the nurse was responsible for the anesthesiology. At approximately 1:15 PM, Nimodipine, an oral medication, was administered intravenously. At 2:10 a code was called, prompting Dr. Paulshock’s return. Phinney was pronounced dead a half hour later.
Following the deposition of a nurse, who was not employed by AA, plaintiff’s counsel sought sanctions for four types of alleged misconduct.
1. Defendants and/or their attorney fabricated evidence; [1]
2. Defendants and/or their attorney wrongly failed to comply with legitimate discovery requests; [2]
3. Attorney Bouchard coached the non-employed nurse to change her testimony during her deposition; [3] and
4. During the same deposition, Attorney Bouchard engaged in impermissible speaking objections and coaching.
For the purposes of this alert, we will focus on the recurrent problems surrounding deposition conduct.
A. Coaching and Speaking Objections
Attorney Bouchard was sanctioned for the following impermissible behavior:
1. Interrupting plaintiff’s questioning without benefit of objecting first, on twelve occasions.
2. Making objections containing more than a few words, so-called “speaking” objections, eleven times.
3. Cautioning the deponent not to answer questions many times, despite not representing her.
4. Interrupting or objecting in a manner that suggested answers to pending questions on several occasions.
5. Exchanging whispers with the deponent during plaintiff’s counsel’s questioning.
Attorney Bouchard rationalized his conduct as responding to what he perceived as witness badgering by plaintiffs’ counsel. Nevertheless he conceded some of his conduct was inappropriate, which he “regretted.” Magistrate Muirhead relied in part on FRCP 30 (c)(2) in sanctioning counsel, which states examination and cross-examination of deposition witnesses is to proceed as permitted at trial. It also provides that any deposition objection shall be stated concisely and in a non-argumentative and non-suggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court or to preserve a motion under Paragraph 3. FRCP 30 (d)(3) indicates that FRCP 37 (a)(4) sanctions are available for deposition misconduct, consisting mainly of an award of costs and fees.
Attorney Bouchard’s sanction included paying for the stenographic cost of the nurse’s deposition and a court-ordered written apology letter to plaintiffs’ counsel for his misconduct.
The importance of proper deposition conduct and its potential negative impact was noted by Magistrate Muirhead:
It is a matter of trust that attorneys, as officers of the court, are expected to police themselves and play by the rules. If an attorney engages in a pattern of behavior in deposition that he either knows or should know is improper, he depletes the reservoir of trust between attorneys, undermines the collegiality necessary to the efficient and amiable resolution of disputes, and unnecessarily requires court supervision of discovery.
Phinney v. Paulshock, et al., 181 F.R.D. 185, 206.
Magistrate Muirhead concluded by noting that the evidentiary hearing, voluminous motion papers, hundreds of pages of testimony, lawyers defending and attacking lawyers, and clients and counsel disputing each other’s testimony, “might have been avoided if the reservoir of trust between counsel had not been dissipated by deposition abuse[.]” Id.
II. Current Status
In New Hampshire, and for years after Phinney, litigation counsel sought to avoid the risk of sanctions by rigorously complying with Federal Rules of Civil Procedure and the Superior Court Rules, [4] court structuring orders, [5] and the Phinney opinion. Nevertheless, both locally and nationally, we have seen slippage from the mandates of the court rules and established case law. For instance, this past September, a federal district judge, who was supervising multi-district litigation over the Cambridge Analytic Data Harvesting scandal, criticized deposition misconduct in the context of a sanctions motion principally related to document production delays. The impermissible deposition conduct included a witness who refused to answer “basic” questions and a defense attorney repeatedly telling the witness she did not have to respond. See September 15, 2022 Law360 article, “Facebook Judge Rips Gibson Dunn Attorney’s ‘Abominable Depo’”.
Also recently, the New York County Supreme Court sanctioned two lawyers for “uncivil and obstructive behavior” by imposing fines of $10,000 and $2,000, and mandating attendance at civility courses. Jacob Hindlin v. Prescription Songs, LLC, et al, NY St Cts Elec Filing (NYSCEF) Doc No. 1037; sanctions order in Hindlin v. Prescription Songs, LLC, Sup. Court, NY County, Index No. 651974/2018 (N.Y. App. Div. August 2022). During a witness’s deposition, one counsel interposed 187 “improper speaking objections and/or colloquy” and ordered his client not to answer over 30 questions while another lawyer interjected 114 times. Id.
In imposing sanctions, the Hindlin court cited counsel’s conduct in other depositions in the same case where the disruptive behavior included statements such as:
Locally, we are aware of deposition conduct, which while not rising to the level of that outlined Hindlin, is still impermissible and includes the following:
III. Misconduct Prevention
If opposing counsel is known to behave improperly during depositions, there are steps to take before discovery commences, to curtail such behavior. For instance, as in Phinney, the Structuring Order can state all counsel are to refrain from coaching objections and when objecting only state the basis of the objection (e.g., leading, non-responsive or hearsay). Before depositions start occurring, counsel should discuss with the opposing attorney the scope of permissible and impermissible deposition conduct, and memorialize the discussion and any agreements in a letter. This can be especially helpful with subjects such as proper “form” objections, which, as you might have sensed when reading above, sometimes require counsel to walk a fine line between saying too much and saying too little. Agreements between counsel, in advance, about the proper way to lodge form objections, can head off discovery disputes before they begin.
During a deposition, if improper conduct occurs, it is prudent to inform opposing counsel calmly and politely about it; and provide case law and rule citations. If this step is unsuccessful, counsel could contact the assigned judge for intervention or suspend the deposition and seek judicial review. Obtaining a favorable judicial ruling is most likely if a warning has been provided to opposing counsel in advance and on the record. As is demonstrated in both Phinney and Hindlin, repetitive misconduct in one deposition or throughout a case can result in public, embarrassing and expensive sanctions.
NOTES
1. The magistrate found insufficient evidence supporting this claim, which is not described in detail here.
2. Monetary sanctions were imposed against Dr. Paulshock and AA for refusing to comply with discovery obligations. Paulshock’s Reconsideration Motion was denied in an unreported decision. His unsuccessful First Circuit appeal only addressed this issue. Phinney v. Wentworth Douglas Hospital, 199 F.3d 1 (1st Cir. 1999)
3. The magistrate found insufficient evidence supporting this claim.
4. It should be noted NH Superior Court Civil Rule 26’s deposition provisions are less specific and narrower than FRCP 30. Nevertheless, it provides guardrails to curtail deposition misconduct. It is similar to the Federal Rule by stating defendants should ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions. Rule 26(j), like its federal counterpart, states a witness cannot refuse to answer questions on the grounds the testimony would be inadmissible at trial if the testimony sought appears reasonably calculated to lead to admissible evidence and does not violate privilege. The sanctions under both the Federal and State rules are analogous. In state litigation, upon a finding that either the failure to testify or the filing of a motion to compel testimony was “without substantial justification or was frivolous or unreasonable,” either party can be assessed costs and attorney’s fees.
5. For instance, pre-trial scheduling orders can address deposition conduct. In Phinney, the order stated “all counsel are ordered to refrain from coaching objections during depositions. Objections are limited to what is permitted in court. See New Hampshire L.R. 39.1 (a)(3). This rule provides that “when stating an objection, counsel shall state only the basis of the objection (e.g., “reading” or “non-responsive” or “hearsay.”) Under no circumstance shall counsel elaborate or present an argument or make reference to other evidence unless the court so requests.”
If you need assistance please contact one of the Devine Health attorneys.
