With fewer trials and an increasing focus on using the discovery process to leverage a favorable settlement or resolution, it is common for litigation counsel to be obstructionist during discovery. For example, counsel may interpose depositions with unwarranted boilerplate objections or subtly (or not so subtly) coach the witness by clarifying or commenting on the pending question. While such conduct is often ignored, it has contributed to rising litigation costs throughout the last decade and, as a sanctions order issued at the end of July by a federal judge in the Northern District of Iowa demonstrates, it can severely diminish counsel’s credibility before the trial judge. In light of the impact that discovery tactics can have on the cost and success of litigation, it is increasingly important for general counsel to set clear expectations when retaining attorneys to represent the company in litigation.
In Security National Bank of Sioux City, Iowa v. Abbott Laboratories, Civ. No. 11-4017, Doc. No. 205 (N.D. Iowa Jul. 28, 2014), U.S. District Judge Mark W. Bennett of the Northern District of Iowa sanctioned defense counsel sua sponte for his actions during several depositions and ordered counsel to write and produce a “training video” explaining appropriate attorney conduct. Bennett took note of what he considered obstructionist conduct when reviewing deposition testimony to rule on objections for trial. In a 33-page opinion, Bennett criticized counsel for making unnecessary and excessive objections to form, coaching the witness by making speaking objections and seeking independent clarification of pending questions, and frequently interrupting opposing counsel. Counsel never became abusive or used profanity. Indeed, the attorney conducting the deposition never sought relief from the court or requested that any sanctions be imposed. Nonetheless, Bennett concluded that counsel had violated the Federal Rules of Civil Procedure and had substantially frustrated the discovery process. In his view, sanctions were justified and necessary to change counsel’s “obstructive deposition practices” and deter “others who might be inclined to comport themselves similarly.”
