“Halt and Catch Fire” in deposition

Discovery abuse and sanctions, Security National Bank v. Abbott Labs

2014 October

“Halt and Catch Fire,” the title of a popular TV series about the early days of the PC industry, refers to machine codes that instruct a computer “to cease meaningful operation” [Halt and Catch Fire defined by Wikipedia; http://en.wikipedia.org/wiki/Halt_and_Catch_Fire_(HCF) (August 6, 2014).] There are some attorneys who, knowingly or unknowingly, engage in conduct that has the effect of ceasing all meaningful discovery and causing the legal process to “halt and catch fire.” We know this term best as “discovery abuse” or “discovery misuse.” This often occurs in the deposition room, but may also occur in the courtroom.

These attorneys may view their obligation to act as “zealous advocates” as a commandment to engage in abusive behavior. (See ABA Canons of Ethics 7-1, Cal. Disciplinary Rules, Ethical Canon 7-101.) But that ethical charge has limits that are often not considered. Ethical Canon 7-101 is modified by footnote that requires the use of “legitimate” efforts, not every effort.

Those rules require that such conduct be “according to law” and to eschew unlawful claims, issues or defenses. Those who have been on the receiving end of the behavior can only describe it as “obstructionism” that is “grandstanding for their client, to intentionally obstruct the flow of clearly discoverable information to try and win a war of attrition, or to intimidate and harass the opposing party.” (The Security National Bank of Sioux City, Iowa v. Abbott Laboratories, (N.D. Iowa 2014) 299 F.R.D. 595, 596.)

Reining in misbehavior

The problem for many attorneys is that although they complain to the courts in appropriate motions for sanctions, they feel that their complaints of discovery abuse go unheeded. Even members of the judiciary note that such “obstructionist discovery” has its origin, in part, from judges who “so often ignore this conduct.” (Ibid.) Perhaps, this is a result of the attempt to maintain judicial neutrality. But there is a need to rein in such misbehavior by someone who is an “officer of the court.” (Kimmel v. Goland (1990) 51 Cal.3d 202.)

The district court’s aforementioned order in The Security National Bank of Sioux City, Iowa v. Abbott Laboratories is well worth reading. In it, the district court awarded non-monetary sanctions against a big law firm. Judge Bennett describes the conduct of one attorney during two depositions lodged during a trial in his courtroom which were “littered with what I perceived to be meritless objections” that “shocked” the court when it reviewed the transcript. (Id., 299 F.R.D. at p. 597.)

The remarkable part of the ruling is that it was filed as an order to show cause, filed “sua sponte” (by the court’s own motion), after the case was theoretically over. But the judge believed that there was a “serious pattern of obstructive conduct” and that this involved three areas of abuse which combined, served to “unreasonably delay” and deter the ability of the questioner to seek legitimate discovery: (1) excessive use of freestanding form objections which contained no description of the real reason for the objection; (2) efforts to coach witnesses to answer in a desired manner; and (3) ubiquitous interruptions to “clarify” the questions, “speaking objections” and “clarification inducing objections,” which even the defense counsel attempted to “spin” in making the claim “plaintiff’s counsel was on the wrong track factually…defense counsel attempted to steer him to the correct ground,” aside from the hubris, as the court noted this was not defense counsel’s decision to make. The fact that there were excessive interruptions in the discovery process was noted by the court to constitute an “independent reason to impose sanctions” (Id., at p. 609.)

The analysis of the tactics used, and the specific portions of transcripts analyzed by the court are well worth reading. The analysis offers not only the judicial perspective of what seems to be a persistent and perennial problem in discovery, solace to those who have tried to alert the courts of an increasing problem in obtaining discovery, and an object lesson for those who choose to engage in such conduct.

A monetary sanctions’ order to a huge multi-state law firm would have done little to impress the magnitude of the transgressions upon the members of the defense firm. Instead, the court fashioned a remedy that would cost the firm members a lot of the time (and billable hours) by requiring the creation of a video that would “explain the holding and rationale of this opinion, and provide specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court.” (Id. at p. 610.) It also required that “each lawyer at counsel’s firm – including its branch offices worldwide” who engage in state or federal courtroom practice in the U.S. to provide access to the video. (Ibid.) In essence, for a multi-national firm, the effort for them to “have access” and be aware of the ruling would have more wide-ranging effect.

Conclusion

The order is now published in the Federal Rules Decisions, and is therefore freely available and properly cited in any court. It is worth having in your notebook of significant decisions to take to a deposition and to show to opposing counsel, or even to file with the state court on a sanctions motion. Although the ruling is under the Federal Rules of Civil Procedure and from another jurisdiction, there is nothing to suggest that a California state court could not use the discretion granted to them to invoke similar sanctions in the future, under section 128 or 2023.010, subdivision (e) of the Code of Civil Procedure.