Nine Rules for Depositions--Hall v Clifton Nine Years Later
HALL V. CLIFTON PRECISION – ALIVE, DEAD OR QUIETLY SLIPPING AWAY
Guideline 1: Prohibition Against Witness’ Counsel Giving Instructions or Explanations to the Witness
The first guideline outlined in Hall provided, “At the beginning of the deposition, deposing counsel shall instruct the witness to ask deposing counsel, rather than the witness's own counsel, for clarifications, definitions, or explanations of any words, questions, or documents presented during the course of the deposition. The witness shall abide by these instructions." Hall, 150 F.R.D. at 531. In Christy v. Pennsylvania Turnpike Commission, 160 F.R.D. 51 (E.D. Pa. 1995), Judge Joyner ruled that Hall does not limit instructions given to a witness in confidence by his or her lawyer before the deposition. Judge Joyner further ruled that the witness is not required to disclose instructions given to him by his attorney before the deposition. Id.
Guideline 3: Directions Not To Answer
Hall prohibits counsel from directing or requesting that a witness refuse to answer a question “unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the court." Hall, 150 F.R.D. at 531. However, Fed. R. Civ. P. 30(d)(1) and (4) permit an attorney for the witness to direct a witness not to answer if such a direction is necessary to make a motion to demonstrate the interrogation is being conducted in bad faith or to annoy or unreasonably embarrass the witness. A strict reading of Hall nonetheless would require the witness to answer the questions. Generally, judges and attorneys do not follow this proscription.
Judge Dalzell, while admonishing an attorney for suggesting answers to a witness in violation of Hall, commented in dicta that Judge Gawthrop had gone “too far in forbidding an attorney from making most objections and from instructing the witness not to answer an objectionable question." Birdine v. City of Coatesville, et al., 225 F.R.D. 157 (E.D Pa. 2004). A strict reading of this provision would permit harassment by an unscrupulous interrogator who may ask the witness about personal matters meant only to demean the witness. H. Robert Fieback (“Robert Fieback"), a Member of the Cozen O’Connor law firm, stated “the prohibition against directing a witness not to answer assumes good faith on the part of the interrogator. Judges will not permit a line of questioning that is meant purely to demean the witness." In The Deposition Handbook, co-author Dennis R. Suplee (“Dennis Suplee") cites an example of an attorney who routinely asks a witness if at the end of a hotel stay he takes bath robes, or towels and washcloths on the grounds that it reveals facets of the witness’ character. See DENNIS R. SUPLEE AND DIANA S. DONALDSON, THE DEPOSITION HANDBOOK § 6.11, p. 98 (4th ed. 2002). Allegheny County Court of Common Pleas Judge Wettick envisioned a practice of attorneys asking witnesses about their sexual orientation. See Acri v. Golden Triangle Management Acceptance Corp., 142 Pittsburgh Legal Journal 225 (1994).
In similar circumstances to those described above, most practitioners would simply ignore Hall’s proscriptions, directing the witness not to answer such demeaning questions and risking sanctions.
Guideline 4: Making Objections or Statements That Suggest an Answer
Under the fourth Hall guideline, “Counsel shall not make objections or statements which might suggest an answer to a witness. Counsels' statements when making objections should be succinct and verbally economical, stating the basis of the objection and nothing more." Hall, 150 F.R.D. at 531. This area was subject to much abuse and was one of the main reasons for the issuance of the Hall opinion.
For example, in Frazier v. SEPTA, Judge Joyner applied the Hall decision and criticized the following exchange:
Interrogator: Specifically did you observe anybody following you, watching you or videotaping you as you came or went from an attorney’s office?
Defender: She’s already indicated on
Interrogator: She did not answer my question.
Defender: on about 50 different occasions that she has a sense that she is constantly being observed anytime she is out public.
Defender: She said that on many, many occasions. She just gave you that answer again.
Interrogator: She hasn’t answered the question.
Defender: If you want to ask her anything other than that, that’s fine, but she’s told you that.
Frazier v. SEPTA, 161 F.R.D. 309, 315-16 (E.D. Pa. 1995). Judge Joyner also applied Hall in the following decisions: O’Brien v. Amtrak, 163 F.R.D. 232 (E.D. Pa. 1995) (improper objections to suggest an answer); Johnson v. Wayne Manor Apts., 152 F.R.D. 56 (E.D. Pa. 1993) (improper objections to suggest an answer). It should be noted that the conduct Judge Joyner sanctioned in these cases would most likely have been improper without any reference to Hall.
Fed. R. Civ.P. 30(d)(1) is consistent with the Hall prohibition. It states “any objection during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner." There may be occasions, however, when an interrogator may attempt to misuse the witness answers or attempt to substitute the interrogator’s words to give a misleading interpretation of the witness’s statement. Experienced litigators can give graphic examples of such techniques and a blanket prohibition against attempting to correct them would result in a misleading record. The line between a proper objection and one which suggests an answer is difficult to articulate in a rule, but easy for a skilled practitioner to recognize. Regulation of such practice should be left to a case by case decision.
Guideline 5: Conferring with Client during Deposition
Hall prohibited any private off the record conferences between the attorney and the witness during breaks or recesses except to decide whether to assert a privilege. This prohibition has drawn the most criticism. Robert Fiebach said, in his opinion, most judges believe that an attorney should be able to confer with the client if there is no question pending. In The Deposition Handbook, Dennis Suplee stated, “Although many experienced litigators would applaud the judge’s direction that there should not be private conferences during the deposition, they might also say that (Judge Gawthrop) went too far in prohibiting such conferences during normal breaks, lunch breaks, and overnight breaks." Id. § 6.11, p. 97. Suplee cites a 1999 Los Angeles County Bar Association ethics opinion which rejects Hall’s blanket no conference rule. Id. at § 6.12(B), p. 106. It is the conclusion of attorneys consulted for this column that the blanket restriction on conferring with the client is too strict. There are instances when the attorney must confer with the client to determine if the client was confused, or to correct misleading or even false testimony. A former Eastern District jurist, whose name is withheld at his request, was critical of the decision and said that courts generally want clients to confer with their lawyers.
What is the current viability of Hall in the Eastern District? Considering the practice that has developed and the decisions rendered in the twelve years since Hall was decided, the following conclusions can be derived from the case law and the comments of jurists and practitioners:
- Hall was a proper vehicle to curb some of the insidious practices that were occurring in depositions at that time. As a result of the decision, there is a generally accepted more civil atmosphere in deposition practice in the Eastern District.
- An attorney should be permitted to consult with a client at breaks and recesses, and such consultation should not be limited to discussions of privilege. There are legitimate reasons to confer. Although there are few cases which give the attorney the absolute right to confer with the client, there is no absolute prohibition against it.
- Under proper circumstances, an attorney may direct a witness not to answer a question unrelated to privilege when the question is intended to demean the witness and has no other valid evidentiary purpose.
- Although there is a general rule that attorneys may not make objections which suggest an answer, there are times when an attorney may make a speaking objection when the interrogator is attempting to misuse the answers to create a misleading record.
- An attorney may instruct a witness before the deposition concerning conduct of the deposition and the witness cannot be ordered to disclose those instructions.
- The proscriptions in Hall have not been formally adopted by any District Court Judge or Magistrate Judge of the Eastern District in their standing orders or procedures. However, the decision in Hall remains a moderating force for deposition conduct; courts, while not strictly following Hall, may use it as guide for regulating unprofessional conduct.
- Courts outside of the Eastern District have adopted or rejected Hall somewhat along the lines discussed above.
- At least one case in the Middle District of Pennsylvania has demonstrated strong support for following Hall.
- Experience has shown that the guideline most likely to be imposed by other judges is Guideline four, with respect to speaking objections and the most controversial and least likely to be imposed is Guideline five, prohibiting counsel conferring with client during breaks and recesses except to decide to assert a privilege.See Vaira, E.D. Pa. Federal Practice Rules (Gann), comment on L.R.C.P. 26.1.