I think it’s fair to say that Commercial Division judges have little time for discovery disputes. If one peruses the individual practice rules of many of the ComDiv judges, one typically finds language all but prohibiting discovery motions. And ComDiv Rule 14, which itself provides that “[d]iscovery disputes are preferred to be resolved through court conference as opposed to motion practice,” expressly gives the judges the discretion to do so (“If the court’s Part Rules address discovery disputes, those Part Rules will govern discovery disputes in a pending case”). If a particular ComDiv judge’s individual rules are silent on the matter, then the default rule in Rule 14 applies. In which case, counsel are restricted to (i) making a good-faith attempt to resolve the dispute(s) amongst themselves; and (ii) if unsuccessful on their own, submitting competing letters outlining their respective positions and asking for the opportunity to conference the dispute(s) with the court.
Commercial Division judges also have little time for attorney gamesmanship. Again, the ComDiv Rules expressly support this sentiment, as one need look no further than the Preamble to the Rules, which was amended some five years ago to insist on, among other things, “that the practicing bar be held rigorously to a standard of commitment and professionalism of the highest caliber.” This includes conduct at depositions.
The rules governing attorney conduct at depositions were substantially overhauled almost 20 years ago in order to curb certain abusive practices that unfortunately had become commonplace within the bar, including repeated directing of the witness not to answer and lengthy speaking objections intended to coach the witness to answer in a certain way. These and other abuses hampered attorneys’ ability to conduct a proper deposition, burdened the courts with endless calls to chambers and crowded their dockets with discovery motions, and unnecessarily resulted in additional depositions at the expense of clients.
To combat these abuses, the rules were revised to restrict attorneys to making their objections “succinctly and fram[ing them] so as not to suggest an answer to the deponent,” and to generally prohibit them from “mak[ing] statements or comments that interfere with the questioning” or from “interrupt[ing] the deposition for the purpose of communicating with the deponent.” As for the deponent, the rules generally require an “answer [to] all questions at a deposition,” unless the answer would implicate “privilege or a right or confidentiality” or “cause significant prejudice to any person.” (See, generally, Part 221, Uniform Rules for the Conduct of Depositions).
But as ComDiv practitioners well know, the old abusive practices still rear their ugly heads from time to time, including in a case before Manhattan Commercial Division Justice Joel M. Cohen last summer. KBL Group Intl., Ltd. v SH Brand Holdings, Inc. involved claims of breach and fraudulent misrepresentation concerning a trademark licensing agreement between the parties. The case was commenced over seven years ago, and after no less than four extensions of the discovery end-date, the retirement of the judge initially assigned to the case, a lengthy COVID interruption, and a pre-mature motion for summary judgment, the parties finally got around to conducting depositions – under court order, no less – which were to be concluded by May 31, 2023.
On May 30, the day before the close of discovery, one of two designated defendant-representatives appeared for his deposition virtually by Zoom. The deposition began at 11:20 a.m., and plaintiff’s counsel gave the defendant-witness instructions regarding his phone during the deposition. Within minutes, the witness (himself a lawyer) began refusing to answer counsel’s questions, asserting improper “relevance objections” (relevance is not a ground for refusal to answer under Part 221) on his own “without instruction from counsel.” About 20 minutes into the deposition, defendant’s counsel asked for a break to take a “personal call.” When the deposition resumed some five minutes later, plaintiff’s counsel asked the witness if he had communicated with his lawyer during the break. The witness testified that he had texted his lawyer during the deposition, at which point plaintiff’s counsel terminated the deposition, which on the whole “lasted a total of twenty-six (26) minutes.”
Over the next couple weeks, defendant’s counsel offered to pay for the court reporter at the botched deposition and to produce his witnesses for in-person depositions. Plaintiff’s counsel rejected the offers and conveyed his intention to file a motion to compel. Later that day, defendant’s counsel reached out by email to the court to request a conference under ComDiv Rule 14, to which the court promptly responded with an offer to schedule the conference. Plaintiff’s counsel, however, went ahead and filed his motion. The court, as one would expect, was not happy:
There is scant caselaw addressing [Part 221], none of which permits what took place during [the defendant-witness’s] deposition. [The defendant-witness and his counsel] violated Sections 222.1 and 222.3. [Plaintiff] violated Commercial Division Rule 14 by filing its motion while it knew a request for a conference was pending.
As my colleague James Maguire recently reported on this blog, courts have broad discretion to fashion remedies for deposition misconduct, including the drastic sanction of striking the offending party’s pleading. The court in KBL Group, however, exercised some restraint, albeit conditional restraint:
To be clear, both parties have violated the letter and spirit of Court orders and rules. Therefore, the Court declines to award sanctions against either Plaintiff or Defendant in this instance. Discovery shall proceed as set forth below, and no further extensions of the Note of Issue or summary judgment deadlines will be granted. Failure to abide . . . will result in sanctions, potentially including case-dispositive sanctions.
Among other discovery-related directives, the court ordered the depositions to proceed within 30 days and in person; ordered defendant’s counsel to produce a copy of the texts exchanged with his client during the botched deposition, along with a certification of completeness; and ordered that the prevailing party in any subsequent discovery motion be reimbursed for the costs of such motion.
According to the docket as of the date of this blog post, the parties and their counsel appear to be playing a little nicer in their sandbox, including by jointly asking the court to send them to mediation. The mediation, however, appears to have been unsuccessful, and the parties presumably are proceeding with expert discovery – which, my guess, is proceeding in strict accordance with Part 221 and ComDiv Rule 14.