Attorney Brendan A. Sweeney Of Sweeney Law, P.A. Featured In The April 2023 Edition Of The Broward County Bar Barrister – DON’T ACT TOO FAST – TERMINATING CIVIL DEPOSTIONS IN FLORIDA
Starting on the date of admission to The Florida Bar, attorneys pledge fairness, integrity and civility to opposing parties and their counsel, not only in court but also in all written and oral communications. The Rules Regulating the Florida Bar also prohibit a lawyer from “unlawfully obstruct[ing] another party’s access to evidence,” “fabricat[ing] evidence” or “counsel[ing] or assist[ing] a witness to testify falsely.” Rule 4-3.4.
One of the cornerstones of the discovery process in litigation is conducting depositions. Any experienced litigator will have horror deposition stories. Some of the bad behavior is conducted by the deponent, sometimes the bad behavior is conducted by counsel, and sometimes you get the double whammy where both the deponent and counsel are behaving poorly. What is crucial during your deposition is your ability to ask relevant questions without being interfered with. As a younger attorney, one of my first depositions I conducted was against a very experienced senior attorney. Right out of the gate, the attorney was actively interfering with my ability to conduct the deposition. First question asked was for the deponent to state their name, this question was immediately objected to as to form. Thereafter every question I asked was objected to as to form. I inquired to opposing counsel whether he wanted a standing objection as to form, and he yelled at me and told me he was going to defend the deposition as he saw fit.
Thereafter, when I introduced my first exhibit the attorney went on a tirade of a speaking objection and pretty much tailored and instructed the deponent how to answer the question. To say this was a frustrating exercise for a new attorney would be an understatement. I kept moving forward, albeit very slowly, while the form and speaking objections were non-stop. When it was time to take a break for lunch, this being before the time everyone had cell phones on them at all times, I went into a visitors’ office and called my managing partner on the matter. First thing he advised me was as a litigator to slow down for a moment and take five deep breaths. He then advised me that based upon what had transpired during the morning deposition testimony, we will most likely have to terminate the deposition. The managing partner then told me after we speak go pull Rule 1.310 of the Florida Rules of Civil Procedure, because it addressed this exact issue. We talked over what the strategy would be and what needed to be done in the afternoon session.
Rule 1.310(d) of the Florida Rules of Civil Procedure, titled Depositions Upon Oral Examination, provides:
At any time during the taking of the deposition, on motion of a party or of the deponent and on a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of rule 1.310(c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease immediately from taking the deposition or may limit the scope and manner of the taking of the deposition under rule 1.280(c). If the order terminates the examination, it shall be resumed thereafter only on the order of the court in which the action is pending. Upon demand of any party or the deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of rule 1.380(a) apply to the award of expenses incurred in relation to the motion.
A motion pursuant to Rule 1.310(d) can be made by a party or the deponent, as such, it governs behavior conducted by the party taking and defending the deposition. Attorneys in Florida may instruct a deponent not to answer a question “only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate.” Fla. R. Civ. P. 1.310(c); Heartland Express Inc., of Iowa v. Torres, 90 So. 3d 365 (Fla. 1st DCA 2012). Attorneys will sometimes erroneously rush to move to terminate a deposition. This is a very drastic motion and needs to be considered carefully. Judges routinely advise counsel to exhaust all efforts to resolve a dispute that threatens the ability to proceed with the deposition. When there is bad behavior at a deposition, I immediately think a record needs to be created and protected as much as possible. Let’s go back to my scenario with the senior attorney objecting to everything. In these circumstances, first thing I will do is put the attorney on notice and advise them that they are actively interfering with my ability to conduct the deposition and to stop the unnecessary and improper speaking objections. I usually reply to the first speaking objection. I will immediately address the attorney that it is not proper pursuant to Rule 1.310(c), Fla. R. Civ. P. Sometimes, I will also cite the applicable case law on record. I want to set the tone that it is my deposition and that I will not allow the attorney to interfere with it. Additionally, I have found that when you directly provide legal authority on the record the opposing counsel recognizes you are not going to allow any games and are serious. Generally, attorneys that make speaking objections will continue to make them and they tend to get more elaborate if you do not address and quash the behavior immediately.
Once you put the attorney on notice in this manner, they will usually correct their behavior. However, sometimes they persist on continuing with the bad behavior. If this is the case, I usually try to continue to ask questions and advise opposing counsel that this is my second request that they refrain from actively inferring with my ability to conduct the deposition. I will then, on the record, attempt to call the presiding Judge’s chambers requesting a brief hearing on the matter. If I am unable to reach the Judge’s chambers, I will orally make the motion on the record during the deposition specifically setting forth the bad behavior and then follow promptly and file the motion to terminate the deposition and seek attorney’s fees pursuant to Rule 1.380, Fla. R. Civ. P. Once the motion to terminate the deposition has been filed, the deposition is suspended until an order is entered on the motion.
As for protecting the record, many years ago after I made my ore tenus motion to terminate on the record, setting forth the reasons and examples of the poor behavior, opposing counsel started talking and wanted to put something on the record. I was fine with this, however, what I wasn’t fine with was the attorney suggesting on the record that I was being overly aggressive, that I was being physically intimidating to his client and him, and was continually raising my voice. Interestingly, all of the fabricated complaints by this counsel could not show up on a written record. I immediately corrected the record and put forth where I was sitting, that I never got up from my chair, that I never raised my voice. The court reporter was present as well and could be a witness regarding any of this alleged bad behavior. This halted the attorney’s attempt to try to muddy the waters before the court and protected my record. The case settled within a week and before the motion could ever be heard and ruled upon by the Court.
While most depositions are conducted without poor behavior with counsel being professional, ethical, and courteous, it is always good to be prepared for those limited circumstances where there is bad behavior. The big take away from this article should be that attorneys should exhaust all efforts to resolve a dispute that threatens the ability to proceed with the deposition. If this cannot be done then create and preserve the record of the bad behavior, and file the appropriate motion with the Court.
See original article here – Pages 14-15
