The Eighth Circuit got it wrong a couple weeks ago when it reversed the sanction that a district court had imposed on a lawyer for disruptive deposition conduct.
I have over 35 years of experience as a trial lawyer. One of the biggest frustrations in that practice over the years has always been opposing counsel intentionally attempting to disrupt and/or obstruct a deposition. That conduct comes in many flavors. I know it is trite to say and perhaps naïve to believe that trials should be a search for the truth. The truth, however, becomes more difficult, if not impossible sometimes, to find when opposing counsel is disrupting and/or obstructing a deposition.
So I read with great interest when a federal district judge sanctioned a lawyer for disruptive conduct in a deposition and ordered the lawyer to make a video about proper discovery procedure and provide it to her firm’s litigators. We previously reported on the decision here. The court explained the sanction in a well-written opinion, which should be required reading for all first year litigators-to-be.
Then I read, with some frustration, the Eighth Circuit Court of Appeals opinion overturning that sanction. The appeals court acknowledged that the district court had the authority to impose the sanction on its own accord, and also that preventing discovery abuse “depends in part on reducing the reluctance of attorneys to seek sanctions and of judges to impose them.”
But after setting forth the offending conduct — including the lawyer suggesting answers to the witness — and then citing the appropriate rules and precedent that completely justified the sanction imposed (see Rule 30(d)(2)) and the Advisory Committee notes (1993 Amendments)), the Eighth Circuit overturned the district court’s order on the basis that the sanction came too late and was not preceded by “advance notice.”
To justify its holding on notice, the court analyzed the case under the theory that the order to produce an educational video was in a class of the “most severe sanctions” possible — the kind that should require a district court to provide “clear notice” before imposing them. Really? Is this the kind of “severe sanction” that should require advance notice? Creating a video on proper discovery behavior is usually undertaken on a volunteer basis by conscientious lawyers intending to promote ethics and professionalism in their firms or communities.
The bottom line is that almost all lawyers, especially good lawyers, know the Rules of Procedure, including Rule 30(d)(2) on sanctions. If we are ever to make any progress in curing discovery abuse, then trial judges have to get involved and apply the sanctions as authorized by the Rules. And courts of appeal need to support, not thwart, them.