Control Your Own Witness in a Deposition, or Face the Consequences

In case anyone needs another reminder of the need to keep your own witness under control at a deposition, a recent decision provides an excellent lesson.  In GMAC Bank v. HTFC Corp., Civil Acton No. 06-5291 (E.D. Pa. Aug. 12, 2008), the court rejected the defense attorney’s request to reconsider sanctions imposed on him for failing to take appropriate steps to stop his client from swearing and otherwise behaving abominably at deposition.

As the court explained, “once a witness deponent conducts himself or herself in the manner which is designed to obstruct the proceedings, I don't think counsel can just sit idly by and do nothing. I would equate it to a situation where a witness is providing false and perjurious testimony and counsel is aware of it, and under the Rules it requires that counsel has an obligation to correct it and/or withdraw from the proceedings.”  Id. at 4.

As recounted by the court in an earlier opinion, the deponent engaged in “hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony. In fact, [he] used the [“f word”] and variants thereof no less than 73 times…. The Court is left with the impression that such abusive language was chosen solely to intimidate and demean opposing counsel.”  GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 187 (E.D. Pa. 2008). 

The video recording provided further evidence of the witness’ inappropriate behavior.  “At multiple points during the deposition, Wider would follow his inappropriate, obstructive, or dilatory remarks with a gleeful smirk directed at his counsel, at the transcriptionist, and even directly at the camera….  In fact, after a particularly odious instance of obstruction, Wider would even pat himself on the back, flaunting his exploitation of the deposition process, and asking, “‘Isn't the law wonderful?’”  Id. at 189. 

As a result of the misconduct both of the witness and of his attorney in failing to take appropriate steps to correct the witness’ misconduct, the court ordered that the deposition resume in front of a magistrate judge in the federal courthouse and that the witness and his attorney jointly pay the other party the fees and expenses related to the motion for sanctions and the initial deposition.

In denying the attorney’s motion for reconsideration, the court observed that counsel “allowed the deposition to drag on for over two days and nearly twelve hours of testimony, much of which was an unmitigated waste of time and resources. [The attorney] never once suggested that the ill-fated deposition be adjourned. Thus, although courts would be wise to hesitate in close cases before second-guessing an attorney's judgment as to when a deposition should be terminated, no such pause is warranted here.”