A recent decision, Martinez v. Lincoln Center (Sup. Ct. Bx. Cty. Apr. 8, 2015), illustrates that attorneys who engage in obstructionist conduct at depositions do so at their peril.
In this personal injury action, plaintiff, a laborer, was injured when he slipped and fell on debris in an underground garage at Lincoln Center. The court granted plaintiff’s motion for sanctions after finding that defendant’s attorney’s conduct violated Part 221 of the Uniform Rules for the Conduct of Depositions.
Depositions are important weapons in the litigator’s arsenal, and often provide the foundation of a case. Since they are conducted outside the presence of the judge, the opportunity for abuse – such as attorneys improperly directing their clients not to answer, making long so-called “speaking objections”, and the like – is always present. Part 221 – enacted in 2006 – was designed to curb these abuses. For example, they outline the limited circumstances under which an attorney can direct their client not to answer and to interrupt the deposition.
In the Martinez case, according to the court, defendant’s attorney advised her client not to answer question(s) (but apparently later permitted the witness to answer), twice made speaking objections in violation of 22 NYCRR 221.1(b), interrupted the deposition of her witness “by announcing that she ‘was just going to talk to him outside for a second’, without obtaining the consent of all parties, or for the purpose of determining whether a question should be answered” in violation of 22 NYCRR 221.3, and said, in response to plaintiff’s statement that she made an improper objection, “I don’t care if it is an improper objection”.
The court found that defense counsel’s conduct “constituted a serious interference with plaintiff’s ability to conduct the deposition” and imposed (pursuant to 22 NYCRR 130-1.1) sanctions on the defendant’s attorney in the form of $250.00 payable to The Lawyer’s Fund for Client Protection.
The court also directed all counsel to familiarize themselves with Part 221, and that all future depositions are to take place at the courthouse.