Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007)

The court identifies this litigation as a “grudge match.” When counsel spent the first 30 pages of a deposition reviewing Gerstein’s criminal history, the questions got under his skin. After he began answering with “that’s none of your business” counsel began instructing him not to answer. Counsel gave no reason for the instruction other than that the questions were designed to harass the deponent. The court noted that Fed. R. Civ. Pro. 30(d) specifies how to handle the procedure, which is to halt the deposition and seek a protective order; the rule does not allow a deponent to remain silent. Objections to the deposition must be stated concisely and must be non-argumentative and non-suggestive. Counsel may only instruct the witness not to answer for the purpose of preserving a privilege. The court noted that counsel violated this rule repeatedly, instructing the witness not to answer without seeking a protective order. Later, the deposition became more heated when opposing counsel asked Gerstein if he had engaged in homosexual conduct. Objections were exchanged again and the witness was instructed not to answer, again, without seeking a protective order. After a break, Gerstein developed “amnesia” and started playing word games. Although the court found opposing counsel’s conduct “shameful,” the conduct of Gerstein’s counsel instructing him not to respond, together with feigned inability to remember, purported ignorance of ordinary words, was unprofessional and violated the Federal Rules of Civil Procedure as well as ethical rules governing the practice of law. The trial court refused to sanction Gerstein because both sides had behaved badly. On appeal, the court held that the trial court should have used its authority to maintain civility and professionalism. Sanctions were in order, although they need not be monetary. Rather than remanding the case for sanctions, the court censured all attorneys for conduct unbecoming a member of the bar; any repetition “will lead to sterner sanctions, including suspension or disbarment.” Decided: February 7, 2007.

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