How often have lawyers at a deposition faced "objections" by their opposing counsel which are little if nothing more than thinly-veiled cues to the witness to respond to the question in a particular way. U.S. District Judge Mark W. Bennett, one of the Nation's most interesting and thoughtful district judges, concluded recently that enough is enough and imposed sua sponte sanctions on the Jones Day law firm for their misconduct of one of its attorneys in a deposition. Interestingly, the sanctions followed a trial in which Jones Day defended successfully Abbott Laboratories and a products liability case alleging that tainted baby formula made by Abbott had caused permanent brain damage to her infant. The case is reported as Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. 11-4017-MWB.
Judge Bennett recites the following "clarification-inducing" objections as coaching the witness:
Q: Is there – do you believe that there is – if there is any kind of correlation that could be drawn from OAL environmental samples to the quality of the finished product?
Counsel: Objection; vague and ambiguous.
A: That would be speculation.
Q: Well, if there were high numbers of OAL, Eb samples in the factory, would not that be a cause of concern about the microbiological quality of the finished product?
Counsel: Object to the form of the question. It is a hypothetical; lacks facts.
A: Yeah, those are hypotheticals.
...
Q: Would that be a concern of yours?
Counsel: Same objection.
A: Not going to answer.
Q: You're not going to answer?
A: Yeah, I mean, it's speculation. It would be guessing.
Counsel: You don't have to guess.
Here, the questioning plaintiff's lawyer is asking simply if (a) certain environmental sample readings could correlate to the product's quality, or if not that much then (b) could those environment samples could raise concerns about the product's quality. These are, as Judge Bennett, notes "completely reasonable questions" to a knowledgeable witness.
There will be additional postings about these bad-faith deposition objections, one of my pet peeves. I invite others to share their experiences.
Robert L. Abell
www.RobertAbellLaw.com
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