How to Act During a Deposition

How to act during a deposition is quite simple: act like you are in court. This is the ultimate rule that encapsulates all other rules. If you do not know how to act in court, go and talk to people in your firm or local judges and ask them, “How should I act in court?” They will tell you to wear a suit, to be civil and polite, to stand when talking to the judge, to follow our rules of Professional Responsibility, Civil Procedure, and Evidence, and to uphold the honor of our profession.

It turns out that all these apply to depositions, too, except you do not have to stand when taking a deposition.

It is important to know how to act in a deposition because seemingly all we do is depose anymore. If you were one of the few attorneys who tried a case to verdict before a civil jury during 2011, you are a rarity. Increasingly mandatory mediations in federal and state court are contributing factors.[1] Regarding the other factors, we’ve heard it all before: insurance companies are risk averse; people are increasingly risk averse.

Without jury trials, we are left with the deposition and our friends during the daylight hours: fellow lawyers. In Knoxville and East Tennessee generally, being nice means we do things by agreement rather than by notice. We would be offended if somebody subpoenaed our client’s medical records because we usually do that by an agreed order. We also typically do depositions by agreement in East Tennessee, which means we have no recourse when the deponent fails to show up.[2] As lawyers, we are largely a self-governing body of professionals, and we don’t like to get the judge on the phone to handle our deposition disputes. How then, are we to govern ourselves when conducting a deposition? It turns out to be quite simple: understand that a deposition is treated the same as being in court, and behave like you understand that truth.

I. Treat a Deposition as a Court Proceeding

In Tennessee, a deposition is viewed as a court proceeding.[3] In other words, the conduct and speech of attorneys and deponents during a deposition should be viewed as if the deposition were taking place in court before the judge assigned to that case. In light of that understanding, attorneys and deponents should govern themselves accordingly. If you would not say or do a particular thing in open court, then you probably should not say or do it during the deposition in accordance with the solemnity the occasion deserves. The solemnity of the deposition proceeding has been recognized by the Tennessee Court of Appeals, which has observed as follows:

We must note at the outset the critical role oral depositions play in civil litigation. Because of their importance, depositions are conducted under conditions designed to resemble those in the courtroom. See generally Rules 30 and 32 of the Rules of Civil Procedure. The attendance of witnesses may be compelled by subpoena; the proceedings are under oath; examination and cross examination are carried out under the Tennessee Rules of Evidence; witnesses are obligated to answer all questions put to them, except under very limited circumstances.[4]

Despite the solemnity that should attach to depositions, lawyers frequently engage in problem behavior. This article describes problem areas, and offers some solutions.

II. Speaking Objections and Form Objections

We are told since our lawyerly infancy that generally speaking, only form objections are proper during depositions because everything else is “reserved” for trial. Often, a stipulation will be entered into at the beginning of depositions providing as such, namely, that all objections are reserved except as to the form of the question. Where do we get this belief about form objections? Apparently, it comes at least in part from Rule 32.04 of the Tennessee Rules of Civil Procedure, which provides in relevant part as follows:

  • (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
  • (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

Subsection A generally preserves relevancy objections until trial. Subsection B delves into form objections. As a general rule, “[e]rrors” appearing “in the form of the questions” are waived unless they could have been fixed “if promptly presented.”[5] This rule should make plain that the oft-heard phrase “object to the form of the question” may not be sufficient to signal to your party how their erroneous question might be cured. You certainly cannot present such an objection at trial, unless the context is overwhelmingly apparent. It is in this way that we arrive at the notion that the form of the question is something that must be objected to during a deposition, or it is waived.[6]

So, what is a form objection? It turns out that this depends entirely on who you ask. An informal survey of some fellow lawyers generated much variation. Just by way of apocryphal hearsay, here are the form objections I’ve been taught over the years: leading, lacks foundation, calls for speculation, calls for a legal conclusion, vague, ambiguous, compound, asked and answered, assumes facts not in evidence, and argumentative.[7]

However, I am not sure all of these truly are objections to the form of the question. My research revealed one unreported Court of Appeals decision holding that a “lacks foundation” objection was not an objection to the form of the question.[8] Objecting that a question calls for a legal conclusion has more to do with the competency of the witness, which is generally not waived under Rule 32.04(A). There is no rule of Civil Procedure that tells us what proper form objections are, so we rely on the received tradition from our elders to know what that might mean.

Regardless of the nuances of what constitutes a form objection, you’ll be safe if you object to the form of the question and you have an arguable basis for so objecting to the way the question was asked. Speaking objections are a different matter entirely. Rule 30.03 expressly forbids them:

All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.[9]

This portion of Rule 30.03 has a threefold focus on objections: be short, don’t argue, and don’t engage in speaking objections.

The Advisory Comment to this Rule states that the above highlighted language “admonishes lawyers not to make ‘speaking’ objections, which unethically put lawyers’ words in deponents’ mouths.”[10] The rule does not say, as lawyers often claim it does during mid-deposition arguments, that the objection has to be stated as “object to form” without an explanation. In fact, stating the basis of the objection, as long as it is done in a “non-argumentative and non-suggestive manner” seems like a good idea. Otherwise, how will your opponent know what is wrong with her question? “Objection, asked and answered” is a proper objection during a deposition, if the question really has been asked and answered prior to the objection. “Objection, asked and answered because, as Mr. Witness has been trying to say repeatedly, he has absolutely no recollection of burning those documents” is improper as an obvious speaking objection.

A speaking objection is when you suggest the answer to the witness in the body of your objection. Some lawyers cannot help themselves when their witness is tanking or otherwise saying something stupid. But this kind of misbehavior could subject you to sanctions, and is improper under Rule 30.03. Until very recently, there was no Tennessee state case offering any discussion of this aspect of the rule. I used to think that the reason we did not have any appellate decisions on this issue is that Tennessee lacks the state equivalent to Rule 30(d)(2) of the Federal Rules of Civil Procedure. The Federal Rule states that “[t]he court may impose an appropriate sanction — including the reasonable expenses and attorney’s fees incurred by any party — on a person who impedes, delays, or frustrates the fair examination of the deponent.”[11] Under the Federal Rules, this provision is routinely cited as authority for imposing sanctions for improper speaking objections.[12] Tennessee has no strict analog to this Federal Rule, but now we know that the result is the same: speaking objections can get you sanctioned.

We know this because of a very informative decision issued in June by the Tennessee Court of Appeals, In re Foreign Court Subpoena.[13] This case originated with a California lawsuit brought by “Jane Doe” against her swim coach for alleged sexual abuse, but found its way to Tennessee because a witness who had made some public statements about USA Swimming was thought to have discoverable information.[14] After issuance of a subpoena by the defendants in the California action in my hometown of Williamson County, pursuant to Tennessee’s Uniform Depositions and Discovery Act,[15] the parties by agreement took the Tennessee witness’s deposition at the office of an Indiana attorney.[16] The Indiana attorney “objected to almost every question presented” to the deponent and, according to the opinion “behaved in an unprofessional and combative manner.”[17]

The defendants in the underlying action filed a motion to compel discovery and for sanctions seeking the recovery of $6,635 for the way the deposition was conducted and the waste of time and money it represented.[18] The trial court granted the motion and awarded sanctions against the witness, not the attorney.[19] On appeal, the intermediate appellate court affirmed the trial court’s grant of sanctions and held that the Tennessee Rules of Civil Procedure were applicable to this deposition under Tenn. Code Ann. § 24-9-203 and § 205, that the Indiana attorney was bound by Rule 30.03’s admonishment concerning concise and nonsuggestive objections, and that the deponent could be held liable for the monetary sanction, not his attorney.[20] So what did the Indiana attorney do that got his client, the Williamson County deponent, in hot water?

  • He told the deponent not to answer many questions, including “have you ever been known by other names?”[21]
  • After the examiner’s seemingly innocuous request of the witness to give his “best and most truthful answer during the deposition,” the attorney said, “Well, I’ve been doing this for 40 years, and I’ve been doing it all over the county. And let me tell you, I’ve never before heard ... a lawyer suggest and try to intimidate a witness like you’re doing here. This is absolutely unprofessional. It’s ... just showing that you would do this.... [Y]ou attempt to poison the atmosphere of this deposition.”[22]
  • He repeatedly answered the question before the witness could respond.[23]
  • When the examining attorney decided to end early and was challenged, the out-of-state attorney responded, “What part of ... ‘we’re not going to answer questions’ don’t you get?”[24]

This recent case gives us at least one opinion in Tennessee that has imposed sanctions on a witness for the attorney’s conduct during a deposition, interpreting Rules 30 and 37 of the Tennessee Rules of Civil Procedure. For more guidance, let us turn to a recent federal decision.

My favorite federal case of this genre is Mazzeo v. Gibbons,[25] a federal District of Nevada case where Magistrate Judge Peggy Leen considered an “Emergency Motion to Forbid Attorney Walter Cannon from Making Improper Objections at Depositions and for Sanctions.” If you read the opinion, you’ll quickly understand that the judge was annoyed with being asked to referee the dispute, so instead of a monetary sanction, she imposed a sanction of “memorializing their misconduct in” the court’s order.[26] We are not told about the nature of the speaking objections because the offender apparently conceded that he may have gone astray. The judge wrote that “[i]f I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times”:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, nonargumentative and nonsuggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question” are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.[27]

I am quite certain you, dear reader, have heard some variant of these sanctioned comments during a deposition. Remember the interpretative lens for how to act during a deposition: act like you are in court. You would not stand up during your opponent’s questioning of your client and say “Don’t guess!” and the like. So, don’t say that during a deposition.

III. ‘Don’t answer that question!’

What happens when a reasonable objection to a question is insufficient? Can you tell your witness “Don’t answer that question”? You can only instruct a witness not to answer a question in three limited situations. The rule provides that “[a] deponent may be instructed not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit examination.”[28] The most common example of the instruction on privilege is the attorney-client privilege,[29] but there are around 17 total state privileges applicable, not including the Fifth Amendment. Second, the “limitation on evidence” would have to involve a prior protective order or similar court order regarding the evidence. The only other basis for so instructing your witness is pursuant to a termination of the deposition under Rule 30.04, but more on that later.

That’s it. Instructing your witness to refuse to answer a question, if it does not meet these three exceptions, is sanctionable. Several courts have sanctioned counsel for violating this rule, or at least its federal analogue.[30]

IV. The Nuclear Option: Terminating the Deposition Under Rule 30.04

Let’s say that the examining attorney is abusing your witness and asking completely improper questions. What are your options? The Rules seem to contemplate one option: move to terminate under Rule 30.04. “I’m going to get the judge on the phone” is the most often cited threat, but once you invoke Rule 30.04 and actually terminate the deposition, you have exercised the nuclear option. Make sure you use it appropriately. The Rule states as follows:

At any time during the taking of the deposition, on motion of a party or of the deponent and upon 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, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26.03. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37.01(4) apply to the award of expenses incurred in relation to the motion.

You have to read to the end to see how this would work in practice. I interpret this Rule to mean that if your opponent’s conduct in taking the deposition rises to the level of “bad faith” or the other things listed, you must demand that the deposition be suspended so you can move the court for relief against your opponent or a narrowing of the topics of the deposition. We already know from Rule 30.03 that a court order limiting testimony is one of the few scenarios under which you can instruct your witness not to answer. As a practical matter, this might involve an attempt to get the judge on the phone first to see if an order can be made on oral motion. If that doesn’t work, you would have to say on the record that you are demanding that the deposition be suspended until such time as you can by motion seek relief on the bad conduct, pursuant to this Rule. You may have waived the right to object to this conduct if you do not move for termination under Rule 30.04.

V. How Bad Does it Have to Get Before You Move to Terminate the Deposition?

Beyond cursing at the witness or physically threatening them, we will have to look to other jurisdictions to get an understanding of what might warrant terminating a deposition under Rule 30.04. A number of cases in different jurisdictions have imposed penalties on attorneys for asking offensive questions of a deponent during a deposition. They range from improper questions about the witness’ sexual orientation,[31] to calling opposing counsel a “stupid idiot”[32] or sexist remarks by male attorneys to female attorneys like “What do you know, young girl” or “Be quiet, little girl.”[33]

The best case in this genre is Redwood v. Dobson, the factual history of which is far too byzantine to bear repeating in these pages, but centered on harassment of a witness during a deposition.[34] The questions included 30 pages of deposition questioning on unrelated traffic violations and whether the witness was involved in a “homosexual clique with any other defendants in this action.”[35] Such questioning was “shameful” according to Judge Easterbrook of the Seventh Circuit Court of Appeals, but interestingly, the sanctions were imposed on both the questioner and the objecting attorney.[36] Although the attorney defending the witness would have been perfectly entitled to stop the deposition and move for a protective order under Rule 30(d) of the Federal Rules of Civil Procedure, his sin was instructing the witness not to answer when there was no privilege being invoked.[37] The lesson here is this: simply move to terminate the deposition under Rule 30.04, and do not compound the egregious conduct by instructing the witness not to answer.

Even where you conduct the deposition may land you in trouble. I’ve attempted to conduct depositions in an abandoned storage unit (we adjourned to a local high school) and in a jail, but it was always because of expediency, necessity, and by agreement of counsel.[38] Indeed, Rule 29 of the Tennessee Rules of Civil Procedure states that the parties “may by written stipulation” take a deposition “at any time or place.” If everybody agrees to take a 2 a.m. deposition at a Dunkin’ Donuts, and it is signed “by all parties or counsel,” then you can proceed. The stipulation is key, as a recent trial court order from Florida shows. The order in question, from Bedoya v. Aventura Limousine & Transp. Service Inc., shows that choosing a Dunkin’ Donuts as a deposition location just to harass your opponent is a bad idea.[39]

Although there was a host of bad lawyer behavior at play in the motion to disqualify plaintiff’s counsel in this case, including allegations that the plaintiff’s attorney wore a “t-shirt and shorts to proceedings to gain a ‘psychological advantage,’” the Dunkin’ Donuts deposition site was perhaps the most bizarre. The defendant’s attorney apparently objected to the deposition site, and his client complained that the Dunkin’ Donuts was a bad location because it had:

  • open glass, an open wall. You could hear the people. There was [sic] two video games right by where this gentleman is sitting. You could hear people the free Wifi video games
  • … There were people coming and going constantly through that area, high traffic area. They were yelling and screaming in the reception area where people were ordering their lunch and there was one bathroom that was flooded out and the door was locked constantly.[40]

The problem with the location, as it turns out, was that it was an attempt to embarrass and burden the defendant because it lacked the solemnity and relative privacy of a court setting. I do not mean to imply that Dunkin’ Donuts is necessarily off limits for conducting depositions. I love donuts. But if your motivation is to burden and harass your opponent in choosing a deposition location, it is a bad idea. These cases offer fact patterns that suggest certain kinds of behavior that might justify a Rule 30.04 motion to terminate, but knowing when you’ve reached the threshold probably cannot be taught.[41]

VI. Conferring with Your client During the Pendency of a Deposition? Bad Idea.

Another as yet untested element of Rule 30.03 is the Advisory Commission’s comment that “consultations between counsel and deponent during questioning are not to be tolerated any more than it would be in the courtroom.”[42] I read this narrowly to preclude conferences with your witness during live questioning. In other words, you cannot confer right there during the deposition. The comment does not address conferences during breaks. Often, when things are going badly for a witness, the defending attorney may declare that a break is in order. What can you say ethically and legally to your client during that break? It depends on where you look. The most oft-cited case is Hall v. Clifton Precision, a Div. of Litton Systems Inc.,[43] which is brandished as authority for the proposition that there is no “absolute right to confer during the course of” a deposition.[44] In that case, the defendant was shown a document, but the defense attorney said he needed to look at the document and confer with his client before his client would answer.[45] This conduct would be improper right away insofar as it was an instruction for the witness not to answer, absent a privilege or other valid exception. The court stated that during a deposition, just as at trial, “[o]nce a witness has been prepared and has taken the stand, that witness is on his or her own.”[46] That’s fair, in my view, for live testimony. However, this opinion went further in holding that “conferences between witness and lawyer are prohibited both during the deposition and during recesses.”[47] The rationale behind this holding was that such conferences “give the appearance of obstructing the truth.”[48]

Are you frightened that our Advisory Commission seemed to cite this case with approval, albeit omitting the “during recesses” language, in its comment to Rule 30.03?

Do not despair. The holding of Hall v. Clifton Precision has been subjected to some criticism, largely on grounds that read too strictly, it would preclude counsel and client from consulting about anything.[49] Again, when viewing a deposition as a court proceeding, keep in mind what you would be able to do in court with your witness. You certainly could not provide testimony to your client or improperly suggest they not answer a question during trial, and the same is true during a deposition. On the issue of coaching during deposition breaks, some courts have taken the approach of requiring the witness to testify in camera about the attorney-client colloquy to see if improper coaching occurred.[50]

VII. The Late-Filed Exhibit.

Here is some advice to the young lawyers out there on the phenomenon of late-filed exhibits. This is where your opponent is trying to get something he or she forgot to ask for under Rule 34 and attempts to end-run the rule by asking for the item during the deposition. A witness will identify a document that is not present at the deposition, and the examiner will say “let’s mark that as a late-filed exhibit.” Do not panic. Say, “Hold on, I need to think about that.” If they did not previously ask for this document or thing in their Rule 34 requests, you have no obligation to agree that it be marked as a late-filed exhibit. If you do not object, you may be subject to a motion to compel the production of this nonexistent thing called a “late-filed exhibit” in several judicial districts that have local rules to that effect.[51] The advantage of having 30 days to answer a Rule 34 request is you can decide whether the document is privileged or should be covered by a protective order. And, you can actually read it first.

Agreeing to a late-filed exhibit being produced, without looking at the document first, is not advisable.

Conclusion

Remember my cardinal rule at the beginning of this article? How to act during a deposition is quite simple: act like you are in court. Additionally, a number of specific practice pointers can be gleaned from the Rules of Civil Procedure, the very limited Tennessee caselaw, and the analogous federal decisions:

  • Do not suggest the answer you want the witness to give in your objection (speaking objection);
  • Do not prohibit your witness from answering the question unless authorized by Rule 30.03;
  • Do not ask deliberately offensive questions or engage in boorish behavior;
  • Do not confer with your witness during live examination;
  • Do not notice a deposition at 2 a.m. at Dunkin’ Donuts unless you have an agreement to do so and you are not motivated by bad faith;
  • Do not waive your objection to your opponent’s bad behavior by failing to terminate under Rule 30.04, but only use this sparingly after you have a sufficient record of bad faith;
  • Do not reflexively agree to producing a late-filed exhibit — think about it first;
  • And one affirmative commandment: Be nice. Attorneys like to call that being civil. We have an obligation to our profession and to each other to respect the legal proceeding known as a deposition, and govern ourselves accordingly.

Notes

  1. At least where I practice, if a motion for mediation is filed, it is routinely granted. So, they are functionally mandatory. In federal court, you’re likely to get sent to mediation whether you like it or not.
  2. Rule 30.02 of the Tennessee Rules of Civil Procedure provides that if you want to take the deposition of “any person,” you “shall give notice in writing to every other party to the action.” Of course, to get sanctions, you also have to subpoena the witness as allowed by Rule 30.07(2).
  3. Bramblett v. Nick Carter’s Aircraft Engines Inc., No. 294, 1991 WL 12284, at *7 (Tenn. Ct. App. Feb. 7, 1991). (“We make note that a deposition proceeding is no less a court proceeding than if the witness were testifying in open court.”); see also Tenn. R. Civ. Pro. 32.01 (“At the trial . . . any part or all of a deposition, so far as admissible under the Tennessee Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition”) (emphasis supplied).
  4. Dargi v. Terminix Intern. Co., L.P., 23 S.W.3d 342, 344-45 (Tenn. Ct. App. 2000).
  5. Tenn. R. Civ. Pro. 32.04(B).
  6. A recent unreported decision from the Tennessee Court of Appeals has opined that it is Rule 30.03 that provides that “all objections except to the form of the question in a deposition are reserved.” Langford v. Clark, No. M2011–01910–COA–R3–CV, 2012 WL 3608662, *3 (Tenn. Ct. App. Aug. 22, 2012). It seems to me that Rule 32.04 provides authority for this principle, and not Rule 30.03 as this case suggests.
  7. Yes, I know: you have more. And there are more, but there is no canonical text to which we can appeal that would conclusively establish all form objections. The specific grounds for a form objection are primarily anecdotal. At least one court has held that an objection on the basis that the question calls for “inadmissible facts” is sanctionable. In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 619 (D. Nev. 1998).
  8. Perry v. Winn-Dixie Stores Inc., No. E2001-00523-COA-R3-CV, 2002 WL 313152, *6 (Tenn. Ct. App. Feb. 28, 2002).
  9. Tenn. R. Civ. Pro. 30.03 (emphasis added).
  10. Advisory Commission Comment to 1995 Amendment, Tenn. R. Civ. Pro. 30.03.
  11. Fed. R. Civ. Pro. 30(d)(2).
  12. Deville v. Givaudan Fragrances Corp., 419 Fed.Appx. 201, 209 (3rd Cir. 2011) (“Under Rule 30(d)(2), the magistrate judge had authority to impose an ‘appropriate sanction’ for [speaking objections]”) (citation omitted); Craig v. St. Anthony’s Medical Center, No. 09–2818, 2010 WL 2802492, *2 (8th Cir. July 19, 2010) (affirming award of $1,000 sanction against attorney who made improper speaking objections during deposition).
  13. In Re Foreign Court Subpoena Jane Doe v. USA Swimming et al., No. M2011-01718-COA-R3-CV, 2012 WL 2126960 (Tenn. Ct. App. June 12, 2012).
  14. Id. at *1-2.
  15. Id. at *1; see also Tenn. Code Ann. §24-9-201 et seq.
  16. Id. at *2. The attorney was not licensed in Tennessee.
  17. Id. at *2.
  18. Id.
  19. Id.
  20. Id. at *3-5. The court held that the lawyer’s unprofessional conduct was attributable to the witness, so we are left to presume that it is Rule 37.01(2)’s language concerning a “deponent [who] fails to answer a question” during a deposition that was the primary authority for the sanction. Id. at *6-8.
  21. Id. at *9.
  22. Id.
  23. Id.
  24. Id. Readers who are curious about why the Indiana attorney was not sanctioned should know that both the trial and appellate courts found that they had no jurisdiction to impose a sanction over the Indiana attorney who had not made an appearance in the action. Id. at *9, fn. 5. Presumably, this was further complicated by the fact that the only open action in Tennessee was the issuance of the subpoena related to a California case. It is fair to assume that a Tennessee attorney who engaged in this kind of misconduct would be sanctioned.
  25. No. 2:08-cv-01387-RLH-PAL, 2010 WL 3020021, *2 (D. Nev. July 27, 2010).
  26. Id. at *2.
  27. Id.
  28. Tenn. R. Civ. Pro. 30.03. Read Rule 501 of the Tennessee Rules of Evidence and all of the Advisory Commission Comments for good instruction and a list of all Tennessee privileges.
  29. This one is much abused. See Ferrand v. Schedler, No. 11–926, 2012 WL 3016219, *6 (E.D. La. July 23, 2012) (sanctioning attorneys for, inter alia, objecting under attorney-client privilege after question “Did you discuss the testimony that you were giving here today with your attorneys?”).
  30. Morales v. Zondo Inc., 204 F.R.D. 50, 54-57 (S.D.N.Y. 2001) (imposing sanctions on attorney for several things, including instructing the witness not to answer); Layne Christensen Co. v. Bro-Tech Corp., No. 09–2381–JWL–GLR,  2011 WL 4688836, *8 (D.Kan. Oct. 6, 2011) (imposing sanctions for instructing witness not to answer).
  31. In re Hammer, 718 S.E.2d 442, 444 (S.C. 2011).
  32. The Florida Bar v. Martocci, 791 So.2d 1074, 1076-77 (Fla. 2001).
  33. Principe v. Assay Partners, 586 N.Y.S.2d 182, 184 (N.Y. Sup. 1992).
  34. Redwood v. Dobson, 476 F.3d 462, 468 (7th Cir. 2007). See also Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 52 (Del. 1994) (involving misconduct of Texas attorney Joseph Jamail, who among other gems, told the opposing attorney that he “could gag a maggot off a meat wagon”). Jamail’s travails are on YouTube, for those interested.
  35. Id.
  36. Id.
  37. Id.
  38. Well, we did not have much choice on the location for the witnesses deposed in jail. Read the last sentence of Rule 30.01 before you start noticing prison depositions without first filing a motion.
  39. Bedoya v. Aventura Limousine & Transp. Service Inc., No. 11–24432–CIV, 2012 WL 1828066, *19 (S.D. Fla. May 16, 2012).
  40. Id. at *19.
  41. Questions about the amount of insurance coverage where that would otherwise be inadmissible under Rule 411 of the Tennessee Rules of Evidence might be grounds for immediate termination under the Rule. See, e.g., Thomas v. Oldfield, 279 S.W.3d 259, 262 (Tenn. 2009).
  42. Advisory Commission Comment to 1995 Amendment, Tenn. R. Civ. Pro. 30.03.
  43. Hall v. Clifton Precision, a Div. of Litton Systems Inc., 150 F.R.D. 525 (E.D. Pa. 1993).
  44. Id. at 528.
  45. Id. at 526.
  46. Id. at 528.
  47. Id. at 529 (emphasis added).
  48. Id. at 528.
  49. See, e.g., State ex rel. Means v. King, 520 S.E.2d 875, 882 (W.Va. 1999) (“An attorney should be able to ensure that his or her client did not misunderstand or misinterpret a question or a document.”); Birdine v. City of Coatesville,  225 F.R.D. 157, 158 (E.D.Pa. 2004); McKinley Infuser Inc. v. Zdeb, 200 F.R.D. 648, 649-50 (D.Colo. 2001); In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998) (“It is one thing to preclude attorney-coaching of witnesses. It is quite another to deny someone the right to counsel.”).
  50. LM Ins. Corp. v. ACEO Inc., 275 F.R.D. 490, 492 (N.D. Ill. 2011) (citing Chassen v. Fidelity Nat. Financial Inc., No. 09–291, 2011 WL 723128, *1 (D.N.J. Jan. 13, 2011)) (same result).
  51. I have written about this more extensively in our local Knoxville Bar Association journal Dicta, with citations to several local rules. See http://www.painetarwater.com/attorneys/august2011.pdf#page=9.

Daniel C. Headrick DANIEL C. HEADRICK is an associate attorney at Paine, Tarwater, & Bickers LLP, practicing civil litigation in a variety of areas, including employment law, product liability, personal injury and construction law. He received his undergraduate and master's degrees in religious studies from the University of Tennessee. While a student at UT College of Law, he was active in Law Review and twice served as a member of the National Moot Court team. He was elected to the Order of Barristers and the Order of the Coif and received several awards in recognition of his moot court work. He graduated from the College of Law with highest honors in May 2007.