No Stupid Deposition Questions, But Some Can Be Costly

• Pages: 8-8
• Date: 01 October 2024
• Author: Bide B. Akande
• Subject Matter: Civil Law

t is often said that “there are no stu-

pid questions.” While that may be

true, a ruling from a federal appellate

court ruling demonstrates that there

are certainly some expensive ones.

While attorneys may investigate their

client’s novel legal claims, they should

think twice before asking too many

irrelevant deposition questions, lest they

nd themselves footing the bill for sanc-

tions.

In Vaughan v. Lewisville Independent

School District, the plainti, a white

man, sued a school district and seven

school board members under Section 2

of the Voting Rights Act, alleging that

the district’s at-large election system

diluted the votes of nonwhite minori-

ties. To support his claim, the plainti

produced expert reports and planned

to call f‌ive expert witnesses. The plain-

ti’s attorneys also took four deposi-

tions.

During these depositions, the plain-

ti’s attorneys “questioned school

board members on a range of topics

that b[ore] little relevance to a vot-

ing rights lawsuit, including a separate

Title IX suit against the school dis-

trict, claims of sexual harassment at

a school, state standardized testing,

mental health accommodations for stu-

dents during standardized testing, and

board members’ individual views on

policy topics such as allowing teachers

to carry guns on campus.” Neither the

plainti nor his attorneys explained why

these questions were relevant; however,

the court recognized, and plainti’s

attorneys noted, that the defendants

“did not move to quash the depositions

and made only form objections.”

The defendants f‌iled a motion for

summary judgment arguing that the

plainti lacked standing because he

“[wa]s not a member of any minority

group he seeks to advocate for in his

lawsuit (i.e., Asian, Black, or Hispanic).”

The district court granted summary

judgment and costs taxable under 28

U.S.C. § 1920. The district court also

No Stupid Deposition Questions,

But Some Can Be Costly

granted the defendants’ motion for

sanctions against the plainti, his attor-

neys, and their law f‌irm based on the

f‌indings that the plainti’s lawsuit was

frivolous under 52 U.S.C. § 10310(e) and

his attorneys multiplied proceedings

unreasonably and vexatiously under 28

U.S.C. § 1927.

On appeal, the U.S. Court of Appeals

for the Fifth Circuit reversed, in part.

The court vacated the fee award under

section 10310(e), the Voting Rights

Act’s fee-shifting provision for par-

ties, f‌inding that the plainti’s standing

argument was not frivolous because it

presented an issue of f‌irst impression

and sought to extend the application of

existing law. But the court agreed with

the district court’s award of fees for

the plainti’s attorneys’ conduct during

depositions and remanded with instruc-

tions to the district court to identify

which, if any, expenses were incurred

because of the attorneys’ “unreason-

able and vexatious multiplication of

proceedings through irrelevant depo-

sition topics.” Finally, the Fifth Circuit

reversed the district court’s award of

fees against the attorneys’ law f‌irm,

holding that § 1927 does not provide

grounds for a district court to award

attorney fees against law f‌irms or other

entities not admitted to practice law.

ABA Litigation Section leaders agree

with the court’s decision to vacate the

award under the Voting Rights Act’s

fee-shifting provision. It is important

that claimants and their attorneys “can

make arguments based on good-faith

extensions of the law,” explains Joseph

V. Schaer, Pittsburgh, PA, Co-Chair of

the ABA Litigation Section’s Pretrial

Practice & Discovery Committee. “We

don’t want to discourage civil rights

claims,” he adds.

“It’s a pretty reasonable out-

come and reiteration of the stan-

dard of whether a claim is frivolous,”

concurs Ashley J. Heilpren, New

Orleans, LA, Co-Chair of the Litigation

Section’s Pretrial Practice & Discovery

By Bide B. Akand e, Litigation News Contributing Editor

Committee. If attorneys were out-

right barred from pursuing novel legal

theories, “would Brown v. Board of

Education be sanctionable?” Heilpren

asks. “You do not get that decision

without f‌irst braving a new legal the-

ory,” she adds.

Section leaders are less enthused

by the court’s decision to uphold sanc-

tions. “I was more puzzled by the par-

tial sanctions for the attorney conduct,”

comments Schaer. “The whole dis-

covery system is set up to allow attor-

neys to work together in good faith.

This ruling seems inconsistent with

that purpose,” he contends. Without

objections from opposing counsel dur-

ing the depositions, “I don’t know if I

would have done anything dierently,”

he notes.

Heilprin agrees. “There are also a

number of dierent strategic reasons

why someone would go into less rel-

evant questions. As long as the ques-

tions were asked within the time limits

of the deposition, I don’t see a prob-

lem,” she oers.

Litigators have options to try to

avoid sanctions if they f‌ind themselves

in a similar situation. “Be thought-

ful about how your questions f‌it into

the bigger picture,” cautions Heilprin.

“Anticipate your opponent’s objections

and have in your notes the reasons why

your question is relevant,” she advises.

Attorneys should also understand that

their conduct could subject them to

sanctions even where opposing coun-

sel does not put them on notice. “It’s

the attorney’s obligation to observe

the rules even when no objections are

made,” Shaer concludes.

FALL 2024 • VOL. 5 0 NO. 1

8 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WOR LD

Published in Lit igation News Volume 5 0, Number 1, Fall 2024. © 2 024 by the America n Bar Associati on. Reproduced wi th permission. A ll rights reserv ed. This informati on or any portion t hereof may not be copi ed or

disseminated in an y form or by any means or s tored in an electro nic database or re trieval system wi thout the express w ritten consen t of the American B ar Associatio n.