Court Orders Supervisory Sanction after Deposition Dust-Up

• Pages: 7-7
• Date: 01 July 2024
• Author: C. Michael Judd
• Subject Matter: Civil Law

onsider a too-common

dispute: a deposing attor-

ney fumes over production

details, questions grow

sharper, and the defend-

ing attorney terminates the deposition

early. But in a 43-page order address-

ing that situation, a magistrate judge

declared that the parties had been

“chasing each other into a spiraling

race to the bottom of civility” and

imposed sanctions: a two-hour follow-

up deposition of the same witness, in

the magistrate judge’s own chambers,

under the magistrate judge’s supervi-

sion. ABA Litigation Section leaders

view the order in Boulder Falcon v.

Brown as a cautionary tale to practi-

tioners: The path back from “incivility’s

rocky bottom” can be a grueling one.

In March 2021, the plainti purchased

an equity interest in a private jet. Less

than a year later, the defendant—another

owner of the jet—allegedly directed that

the jet be f‌lown from Utah to Atlanta

without the plainti’s consent. The plain-

ti immediately sued in the U.S. District

Court for the District of Utah, arguing

that the defendant had breached the

parties’ ownership agreement.

Thereafter, counsel for the defen-

dant deposed the plainti’s president.

After hours of questioning, the plain-

ti’s counsel lodged several objections,

then oered what the court called “a

heated response”: “[I]f it keeps up, I’m

just going to suspend and we’ll just get

an order from the judge that you do the

rest of the deposition in front of him.”

That warning proved prophetic, as

the plainti’s counsel did end the depo-

sition early and moved for a protective

order. In the order that followed, the

magistrate judge marched through the

deposition transcript, often line by line,

noting argumentative statements and

bad-faith questions. As the court saw

it, the parties had found themselves “at

the rocky bottom of the incivility spiral.”

The court entered a sanction meant

“to maintain standards of civility”: It

Court Orders Supervisory Sanction

after Deposition Dust-Up

struck the oending deposition in its

entirety and invited the witness and

both parties’ counsel to his chambers,

where they would take a two-hour

replacement deposition. The court

explained that it would preside over

the deposition, respond to objections

as they are made, and “swiftly impose

sanctions (including contempt of court)

for any unprofessional or uncivil con-

duct.” The court closed with an admo-

nition: If what happened at the previous

deposition happened again, paying

attorney fees may be “the lesser of the

oending counsel’s worries.”

Though it was the defendant’s coun-

sel taking the deposition, the court’s

reprimands reached the plainti’s

counsel as well. “The plainti’s counsel

seemed to be trying his best to deal

with a tough situation,” opines Paula

M. Bagger, Boston, MA, cochair of

the Litigation Section’s Commercial &

Business Litigation Committee. “What

may have helped was to take the same

action, but sooner, by saying ‘hold the

phone’ and recognizing the parties’

misunderstanding,” Bagger adds.

The root of the parties’ misunder-

standing, in the court’s view, was a

gap in e-discovery literacy. Though

the plainti had produced “load f‌iles”

to streamline review of a large docu-

ment production, it did not inform the

defendant of that fact. The defendant’s

counsel therefore saw the plainti’s

production as “a randomized, unorga-

nized, and duplicative mess,” according

to the court.

This case may be an example of a

lawyer’s technical limitations giving rise

to unprofessionalism. “The defendant’s

counsel based his conduct on a faulty

premise, a real mistake for someone so

experienced,” oers James D. Abrams,

Columbus, OH, cochair of the Section’s

Commercial & Business Litigation

Committee. “The problems presented

could have been avoided if he had just

sought assistance with those load f‌iles.

An attorney who doesn’t have that

competency needs to seek it out.”

In the court’s view, the ill-tempered

deposition was doomed from the start.

The counsel’s questions were rarely

answered with anything that could

be deemed useful because they were

merely asked to highlight what anyone

familiar with load f‌iles knows—without

discovery review software, they are

extremely dicult to decipher, noted

the court. “If a case exists showing

why the federal and local rules require

counsel to promptly meet and confer,

it is the situation posed here,” the court

explained, stressing that “the require-

ment to meet and confer is neither

optional nor a meaningless formality,

[but] a check against an erroneous

path to action by causing parties to

take a hard look at their viewpoints.”

Section leaders echo that sentiment.

“I appreciate courts wanting meet-

and-confer eorts to be more substan-

tial, particularly when parties are not

inclined to budge and when objections

become standard practice,” concurs

Joseph B. Isenberg, Miami, FL, a mem-

ber of the Section’s Pretrial Practice &

Discovery Committee. “Fighting with

opposing counsel is the worst part of

the job,” Abrams laments, “and there’s

no reason for it.”

Bagger oers practical advice to

beleaguered counsel: “Your local rules

likely have meet-and-confer mechanisms

baked in. If something looks o, before

you assume the untoward, talk.”

By C. Michael J udd, Litigation N ews Contributing Editor

SUMMER 2 024 • VOL. 49 NO. 4

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORL D