Nearly every case is won or lost in discovery. Nevertheless, it is the subject of minimal judicial control leaving attorneys to operate on the honor system. When abuses occur, litigants often fail to alert the court because they feel that the damage has already been done. Moreover, as one court has said, “It is difficult to recapture in cold type the atmosphere of a discovery dispute; each individual incident may appear trivial in isolation but the totality of such incidents may add up to obstruction.”1
When discovery disputes have reached the courts, however, the judges have recognized the serious nature of the problem and have uniformly treated them very seriously. Judges in this state have shown the flexibility to remedy some seemingly irreversible advantages obtained unfairly, and, equally important, they have shown the ability to prevent additional abusive conduct by imposing strong sanctions for past transgressions.
II. Abusive Discovery Tactics:
Discovery abuse takes an unlimited number of forms. We will discuss a few of the most common.
Speaking objections are far and away the most frequently encountered obstructive tactic. “Speaking objections occur when the defending attorney actually engages in coaching the witness, attempting in the course of articulating the objection to direct the witness’ attention to what the ‘right’ or ‘correct’ answer should be.”2 For example, in a recent medical negligence case, the defendant doctor was asked the following question: “Doesn’t your report say that there’s no artery on the slide that you examined on June 15, 1994?” The answer was “No. It doesn’t say that.” Unfortunately, the answer was not given by the defendant; it was given by his attorney. When asked why he did not let the doctor give that answer, the attorney explained, “I think you’re asking him intentionally misleading questions, because — as a perfect example, you’re asking, ‘Doesn’t your report say X,’ when, in fact, it doesn’t say it. So I’ll object. Go ahead, Doctor. You can answer it, if you can.” Of course, by the time counsel allowed the witness to answer, the response was obvious.
Another classic example occurs when an attorney interrupts to tell the witness to answer “only if you remember.” Invariably, the witness follows by saying, “I don’t remember.” Faced with such a situation, the court in the leading case of Hall v. Clifton Precision3 responded strongly:
A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record.4
Another form of coaching occurs when the attorney acts as an intermediary by objecting on the grounds that he does not understand the question. For example, in another recent New Hampshire case the defendant doctor was asked: “Would you agree with me that the abnormality in the films of January 22, 1995 is apparent in those films?” The defense attorney interrupted, stating, “I object to the phrase ‘abnormality in the films.’ I just think that’s an improper way of phrasing it, and I object to the form.” Plaintiffs’ counsel then asked the doctor whether he knew what “abnormality” meant. The doctor candidly replied that he did.
The Hall court found such an objection to be entirely improper. “If the witness needs clarification, the witness may ask the deposing lawyer for clarification. A lawyer’s purported lack of understanding is not a proper reason to interrupt a deposition.”5 Other courts have agreed. A federal district court judge in New York has emphasized that “it is not counsel’s place to interrupt if a question is perceived to be potentially unclear to the witness. Rather the witness should make the determination as to whether a question is clear and answer to the best of his or her ability.”6
If a deposition question is bothersome to the attorney representing the witness, as in the situation referenced above where the attorney felt the questions were intentionally misleading, counsel is free to clarify the issue when it is his turn to ask the questions. Otherwise, he is almost always limited to saying, “I object to the form of the question. You may answer.”7 The bottom line is that counsel defending a deposition cannot do anything that he would not do in court.8
Interference with deposition testimony has become pervasive resulting in a request that Magistrate Judge Muirhead issue a prophylactic prohibition in the initial structuring conference order of a complex medical negligence case. The potential for interference was raised by plaintiffs’ counsel in the preliminary pretrial hearing. Judge Muirhead treated the issue seriously and wrote in his structuring conference order that “[a]ll counsel are ordered to refrain from coaching objections during depositions. Objections are limited to what is permitted in Court.”9
The federal rules of civil procedure explicitly prohibit coaching objections, stating that “[a]ny objection to evidence during a deposition shall be stated concisely and in a non-argumentative manner.”10 Some federal districts have adopted local rules which go even further. For example, the southern district of Florida has a rule entitled “Sanctions for Abusive Deposition Conduct,” one provision of which prohibits “[o]bjections or statements which have the effect of coaching the witness, instructing the witness concerning the way in which he or she should frame a response, or suggesting an answer to the witness.”11
Our Superior Court rules do not contain an explicit prohibition against coaching or speaking objections.12 We urge the Advisory Committee on Rules to propose a comprehensive rule addressing abusive deposition conduct identical to the rule in place in the southern district of Florida. Failing that, at the very least, an amendment to Superior Court Rule 44 expressly prohibiting speaking objections is necessary. Until that happens, practitioners might consider raising the issue at the preliminary structuring conference and asking the judge for a prophylactic ruling in the structuring conference order similar to the one Judge Muirhead issued.
In the absence of a prophylactic prohibition against coaching, it remains imperative that speaking objections are brought to the attention of the court when they occur. If necessary, you should suspend a deposition to seek relief. As difficult as it may be to terminate a deposition that took several months to schedule, a speaking objection causes immediate, irrevocable harm to the truth-seeking process and cannot be tolerated. Judges are right to despise discovery disputes, but the fact that two parties are present does not necessarily mean that both are at fault; particularly in the case of deposition coaching where the rules are so clear-cut. When an attorney disregards these simple rules and interferes with the witness’s testimony, he is intentionally obstructing the truth-seeking process. This is a very serious matter and, while the court cannot turn back the clock to remedy the harm that has been done, it can punish such conduct to ensure that it does not happen again.
While coaching objections are the most prevalent problem, another abusive tactic has become commonplace lately. Attorneys defending depositions have recently begun instructing their witnesses not to answer potentially damaging questions.
If discovery is the most important phase of a lawsuit, the deposition of the defendant doctor is the most important part of a medical negligence case. Attorneys representing defendant doctors face intense pressure to find some way to prevent damaging deposition testimony. At the same time, in the absence of significant sanctions, there is little or no reason for them not to try. Imaginative attorneys have offered several grounds for instructing their clients not to answer questions calling for opinion testimony. Rarely are these grounds upheld when the issues are raised before the court. We are aware of four recent examples.
In the first case, defense counsel argued that his client, a doctor, should not have to give any opinion testimony in his deposition because he had not been disclosed as an expert. The deposition was suspended and plaintiffs’ counsel filed a motion to compel. In essence, defense counsel argued that his client’s deposition should be bifurcated with separate fact and opinion sessions. The court disagreed and granted the plaintiffs’ motion to compel.13
In another case, an x-ray film was placed on the viewing box at the defendant radiologist’s deposition and he was asked: “Do you agree that there is some soft-tissue thickening in the nasopharynx in that film?” His attorney objected and instructed him not to answer on the grounds that the subject was irrelevant and that the question called for expert testimony. Again, the deposition was suspended immediately and a motion to compel was filed. The court again granted the motion and ordered the defendant to answer that question and all others not covered by a recognized privilege.14
The third case was a dental malpractice case. There, defense counsel instructed his client not to answer any questions calling for opinion testimony. In support, he cited the Supreme Court’s decision in Carson v. Mauer.15 In Carson, the Court said that it found nothing objectionable in the medical injury statute’s provision immunizing defendants from having to give expert testimony against themselves.16 Nevertheless that provision fell along with the entire statute when the Court declared the chapter unconstitutional and ruled that the acceptable provisions could not be severed.17
Medical malpractice defendants have seized upon the Carson Court’s approval of such a provision to argue in favor of a physician’s privilege against self-incrimination. What they ignore, however, is the fact that the provision was not included in the legislature’s next medical injury statute.18 Under New Hampshire Rule of Evidence 501, there is no such thing as a common law privilege. The only recognized privileges are those expressly set forth in the statutes and rules. Therefore, the absence of a provision similar to the one previously found in R.S.A. 507-C:3,III is fatal to the defendant’s argument. In the dental case, the court agreed with this analysis and granted the motion to compel.19
The most recent example involved an objection to the following deposition question: “Doctor, do you acknowledge now that the infection was present on the January 25, 1995 x-ray?” Defense counsel instructed the doctor not to answer on the grounds that the question interfered with the attorney-client and work product privileges. The deposition was suspended and the issue was taken up with the Court. The defendant argued that the doctor had formed his current opinion on the presence of infection in anticipation of litigation only after consultation with his attorneys and after he had performed medical research to assist in the defense. The defendant also claimed the Carson privilege against self-incrimination and asserted that the question called for expert testimony from a non-disclosed expert.
The court rejected each of these arguments and granted the resulting motion to compel.20 The court also ordered defense counsel to pay plaintiffs’ counsel’s fees and costs. It then denied the defendant’s motion for reconsideration, emphasizing that “[t]here is simply no privilege (statutory or otherwise) which would protect the treating physician from questions directing him to look at an x-ray taken at the time he treated the plaintiff and give testimony as to what the x-ray demonstrates.”21
Another issue which arose in that case was whether defense counsel had the right to go off the record unilaterally while a question was pending to privately confer with the doctor before answering. This issue was addressed by the court in Hall:
During a civil trial, a witness and his or her lawyer are not permitted to confer at their pleasure during the witness’s testimony. Once a witness has been prepared and has taken the stand, that witness is on his or her own. The same is true at a deposition. The fact that there is no judge in the room to prevent private conferences does not mean that such conferences should or may occur. The underlying reason for preventing private conferences is still present: they tend, at the very least, to give the appearance of obstructing the truth.22
The rule against private conferences during depositions applies with equal force whether the conference is initiated by the witness or the attorney. “To allow private conferences initiated by the witness would be to allow the witness to listen to the question, ask his or her lawyer for the answer, and then parrot the lawyer’s response. [T]his is not what depositions are all about — or, at least, it is not what they are supposed to be about.”23 Id. In the New Hampshire case, the court found that defense counsel’s conduct was improper and wrote: “So there can be no future mistake, off the record discussions between defense counsel and the witness at the deposition shall take place only by agreement of counsel.”24
Another item of concern is the liberties some people take with deposition errata sheets. For example, in a recent deposition the defendant doctor was asked the following simple question: “As a general proposition, is it fair to say that the earlier breast cancer is diagnosed, the better the prognosis?” The doctor answered, “yes.” When the deposition correction sheet arrived from defense counsel a month later, the doctor wrote, “Delete yes. As a pathologist, I do not consider myself to be an expert on cancer treatment or prognosis. I have heard the general proposition stated in the question. I also know that there is some doubt about its validity today.” In addition, he made substantive changes to ten other answers he had given. Superior Court Rule 41 allows witnesses to correct errors in the transcription of their depositions, but it does not allow witnesses to make substantive changes like these.
B. Interrogatories and Requests for Production:
It is nearly impossible for the opponent, much less the court, to discover that evidence is being withheld. The temptation to avoid producing incriminating evidence is especially strong in the context of written discovery requests. Some succumb to it by being less than frank — denying that documents exist or giving deliberately false interrogatory answers. Others go into denial; taking the position that the discovery requests do not mean what they say. Both strategies are illustrated in Malautea v. Suzuki Motor Corporation.25
Malautea was a personal injury case arising from the rollover of a Suzuki Samurai. The plaintiffs sought production of various materials relating to Suzuki’s knowledge of the vehicle’s tendency to roll. In response to interrogatories, Suzuki claimed that the terms, “test, research or other investigation” and “risk of rollover” were vague and ambiguous. The Court rejected this characterization and found defense counsel’s attempt “to inject ambiguity into these ordinary words” to be reminiscent of Humpty Dumpty’s explanation to Alice in Wonderland that “[w]hen I use a word it means just what I choose it to mean — nothing more nor less.”26
Plaintiffs’ counsel also asked Suzuki for information pertaining to its dealings with General Motors regarding the Samurai and GM’s ultimate decision not to market the vehicle in the United States.27 Suzuki responded that it was unaware of any decision by GM not to market the Samurai. Plaintiffs’ counsel, however, was able to obtain documents from GM, including a letter addressed to Mr. Suzuki himself, in which GM explained that it was too concerned with the safety of the Samurai to sell it in the United States. The court found that Suzuki, its national counsel, and its defense lawyers had participated in a deliberate cover up of this damaging evidence.28
The court carefully considered the appropriate sanctions for these, and other, obstructive tactics. It considered entering “a clear order requiring the Defendants to divulge all of the information the Plaintiff seeks,” but determined that that would not solve the problem. In light of the defendants’ conduct, the court felt that it could only ensure compliance with such an order by personally inspecting all of Suzuki’s internal documents in camera.29 As a result, the court decided it had no alternative but to enter a default judgment for the Plaintiff.30 Adding insult to injury, the court ordered the defendants and their attorneys to pay the attorneys’ fees and costs incurred by the plaintiffs in the various discovery disputes. In addition, the corporate defendants were each fined $5,000, while each of their attorneys was personally fined $500. In closing, the court noted that it was “appalled at the discovery abuses that have taken place in this litigation. . . If the Defendants do not deserve the most severe sanction available, then no one does.”31
On appeal, the Eleventh Circuit agreed that “the defendants and their attorneys engaged in an unrelenting campaign to obfuscate the truth.”32 Consequently, “the defendants richly deserved the sanction of a default judgment.”33 The court felt compelled to address “the disturbing regularity with which discovery abuses occur in our courts today.”34 It noted that one lawyer had been quoted in an ABA study as having the following attitude toward discovery: “Never be candid and never helpful and make your opponent fight for everything.”35 The court blasted this viewpoint:
An attorney’s duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. This concept is as old as common law jurisprudence itself. . . . Too many attorneys, like defense counsel in this case, have allowed the objectives of the client to override their ancient duties as officers of the court. In short, they have sold out to their client. We must return to the original principle that, as officers of the court, attorneys are servants of the law rather than servants of the highest bidder. We must rediscover the old values of our profession. The integrity of our justice system depends on it.36
Closer to home, a similarly blatant attempt to avoid producing damaging evidence was fortuitously discovered in a recent case. Plaintiff’s counsel informally asked defense counsel to produce a “burgundy notebook” on October 13, 1994. Plaintiff’s counsel renewed the informal request on September 7, 1995. Having received no response, plaintiff’s counsel served a formal request for production on October 19, 1995 asking for the notebook. Again, no response was forthcoming. Plaintiff’s counsel wrote to defense counsel on December 4, 1995 asking for a response in lieu of a motion to compel. Having received none, the motion was filed on December 27th. On January 5, 1996, defense counsel finally responded, denying awareness of the notebook. However, at her deposition on February 5th, one of the defendants confirmed the existence of the notebook and said it had been given to her sister who had removed its contents. Plaintiff’s counsel renewed his request for the notebook on February 15th. Defense counsel waited until March 14th to respond and declined to produce the notebook on the ground that it was no longer in the defendant’s control. When the issue was taken up with the court, the judge, finding this to be another in a pattern of instances in which the defendants had stonewalled the plaintiff, ruled that the notebook and any contents removed from it were to be produced within ten days or the defendants would face a spoliation of evidence instruction at trial.37
We recently faced a peculiar discovery tactic. We requested copies of an investigator’s notes only to be told that they were privileged. The defendant pressed its privilege claim before the court, but lost. When we renewed our request following the ruling, we were told that no such notes ever existed.
As the stakes continue to escalate in litigation and the competition for business becomes more fierce, attorneys face enormous pressure to prove to their clients that they will win at all costs. This manifests itself most clearly in discovery where, at least initially, there is no judicial supervision. Despite the lack of supervision, discovery remains the most critical phase of the lawsuit. When discovery abuses occur, they must be brought to the court’s attention. When abusive tactics do reach the court, they are treated seriously. It is important that courts issue prophylactic orders against discovery abuse in their structuring conference orders, and on the rare occasion when litigants are able to uncover such tactics, the offenders must be sanctioned in a meaningful manner to counteract the powerful pressure to break the rules.
Chmieloski v. New York State Department of Economic Development, 149 F.R.D. 42, 44 (S.D.N.Y. 1993).
Applied Telematics, Inc. v. Sprint Corporation, 1995 WL 79237, at *1 (E.D.Pa. 1995).
150 F.R.D. 525 (E.D.Pa. 1993).
Id., 150 F.R.D. at 528.
Id., 150 F.R.D. at 530, fn 10.
Phillips v. Manufacturers Hanover Trust Company, 1994 WL 116078 at *4 (S.D.N.Y. 1994)
See Applied Telematics, supra note 1 at *1; Hall, supra note 3, 150 F.R.D. at 531; Tuerkes-Beckers, Inc. v. New Castle Associates, 158 F.R.D. 573, 575 (D.Del. 1993); Armstrong v. Hussman Corporation, 163 F.R.D. 299, 304 (E.D.Mo. 1995).
Hall, supra note 3, 150 F.R.D. at 530-31.
Phinney v. Wentworth-Douglass Hospital, et al., No. 97-CV-45-JD, Order on Plaintiff’s Report of Parties’ Planning Meeting (D.N.H. May 19, 1997).
S.D.Fla. Local Rule 30.1(A)(1). See also D.Colo. Local Rule 30.1C(A)(1).
But see New Hampshire Bar Association Litigation Guidelines §5 (Published in August 6, 1997 edition of New Hampshire Bar News at p. 29).
Swenson v. Sise, No. 95-C-109, Order on Plaintiffs’ Motion to Compel (Cheshire County Superior Court, February 22, 1996).
Donovan v. Osachuk, No. 94-C-497, Order on Plaintiffs’ Motion to Compel Deposition Answers (Hillsborough County Superior Court, Southern District, August 7, 1996).
120 N.H. 925 (1980).
Id., 120 N.H. at 935.
Id., 120 N.H. at 945-46.
R.S.A. Chapter 507-E.
Poire v. Bailey, No. 96-C-84, Order on Plaintiff’s Motion to Compel Deposition Answers (Belknap County Superior Court, April 23, 1997).
Nary v. Orthopaedic & Trauma Specialists, P.A., No. 96-C-308, Order on Plaintiffs’ Motion to Compel Deposition Answers and for Additional Relief (Strafford County Superior Court, June 3, 1997).
Nary v. Orthopaedic & Trauma Specialists, P.A., No. 96-C-308, Order on Motion for Reconsideration (Strafford County Superior Court, June 19, 1997).
Hall, supra note 3, 150 F.R.D. at 528 (footnote omitted).
Id., 150 F.R.D. at 528-29.
Nary, supra note 19, Order on Plaintiffs’ Motion to Compel Deposition Answers and for Additional Relief at 2.
148 F.R.D. 362 (S.D.Ga. 1991), aff’d, 987 F.2d 1536 (11th Cir. 1993), cert. denied, 510 U.S. 863 (1993).
Id., 148 F.R.D. at 366.
Id., 148 F.R.D. at 367-68.
Id., 148 F.R.D. at 369.
Id., 148 F.R.D. at 375.
Id., 148 F.R.D. at 376.
Malautea v. Suzuki Motor Company, 987 F.2d 1536, 1544 (11th Cir. 1993).
Id., 987 F.2d at 1542.
Id., 987 F.2d at 1546.
Id., 987 F.2d at 1546, n. 9.
Id., 987 F.2d at 1546-47.
Rocha v. Kennedy, No. 95-C-13 (Hillsborough County Superior Court, Northern District, April 8, 1996).