August 24, 2022

Episode 102 - Lessons From The Front Lines: When Suspending Or Terminating A Deposition in Progress Due to Misconduct, Don’t Forget to Say This

11 minutes

There's definitely a right and a wrong way to terminate or suspend a deposition in progress on the grounds it is being conducted in bad faith, or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. In this episode, Jim Garrity spotlights a new court ruling imposing sanctions against a party who failed to do it correctly. As always, Garrity offers you practical guidance, here about exactly how to suspend or terminate a deposition and seek court relief in a way that complies with the governing rule.

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SHOW NOTES

Fed. R. Civ. P. 30(d)(3)(A) (providing only grounds under the rules for interrupting, terminating, or limiting a deposition in progress)

Daniels v. Dixon, et al., 2022 WL 3574443, No. 8:21-CV-00223-CJC (C. D. Cal. July 12, 2022) (defendant law enforcement officer and counsel walked out of deposition after fifty minutes alleging, among other things, that plaintiff was disrespectful in conducting his deposition; held, “Because Defendant has failed to move for an early termination [under Fed. R. Civ. P. 30(d)(3)], Defendant remains obligated to complete the deposition,” and was ordered to pay $2,031 in costs associated with the terminated deposition)

Coulter v. Paul Lawrence Dunbar Community Center, et al., 2020 WL 13469775, No. 16-CV-0125 (W. D. Penn. Feb. 27, 2020) (granting defense motion for sanctions where plaintiff walked out of deposition without properly suspending and then seeking court order relating to alleged defense harassment)

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, at *7 (S. D. Cal., 2020) (“Most significantly, a further deposition is warranted because of Defendant Fellner's decision to leave the deposition after less than two hours had elapsed, without moving for a protective order under Rule 30(d)(3) or otherwise alerting the Court that he was choosing to terminate the deposition. That decision not only “impede[d]” the deposition; it torpedoed it.”)

Omeprazole Patent Litigation, 227 F.R.D. 227, 230 (S. D. N. Y. 2005) (“It is not the prerogative of counsel, but of the court, to rule on objections.... [I]f the plaintiff's attorney believed that the examination was being conducted in bad faith ... or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied immediately to the ex parte judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d).”

*Added after this episode first aired:

Boulder Falcon, LLC v. Brown, No. 222CV00042JNPJCB, 2023 WL 2662187, at *12 (D. Utah Mar. 28, 2023) ("Fed. R. Civ. P. 30(d)(3)(A) provides: “At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Although the term “bad faith” can have many meanings depending upon the context in which it is used, one of its common connotations is to do something for an “improper purpose.” Bad faith and improper purpose include unnecessarily increasing the costs of litigation. Further, bad faith can arise when the examining attorney lacks a basis for asking questions that allege adverse facts.")

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