Civil Procedure

Judge orders Jones Day to make training video on impropriety of frequent deposition interruptions

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A Jones Day partner won’t have to write “I will not make frequent deposition interruptions” 100 times, but the firm will have to make amends with U.S. District Judge Mark Bennett with an unusual sanction.

The judge is requiring a partner at the firm to make a video explaining “the impropriety of unspecified ‘form’ objections, witness coaching, and excessive interruptions.” Above the Law has a story and links to the order, dated July 28.

Bennett says the firm doesn’t have to make the video publicly available and it can be filed under seal with his court.

He begins his opinion with a lament about “obstructionist discovery conduct” that “fuels the astronomically costly litigation industry.”

“Obstructionist litigators, like Ivan Pavlov’s dogs, salivate when they see discovery requests and are conditioned to unleash their treasure chest of obstructive weaponry,” Bennett writes. “Unlike Pavlov’s dogs, their rewards are not food but successfully blocking or impeding the flow of discoverable information. Unless judges impose serious adverse consequences, like court-imposed sanctions, litigators’ conditional reflexes will persist. The point of court-imposed sanctions is to stop reinforcing winning through obstruction.”

Bennett said he was “greatly impressed” with the Jones Day lawyer during the trial, saying the counsel was extremely well-prepared and did a great job of incorporating electronic evidence. But during depositions, “counsel’s baseless interjections and obstructionist commentary were ubiquitous,” he said.

Bennett offered several examples, including what he deemed an “absurdly hyper-technical” objection to a question about how to access a dryer. The exchange began when the deponent said there was no way to access the inside of a dryer, spurring a question whether it was possible to “get on the outside of the dryer.”

The lawyer’s objection: “Object to the form of the question; outside of the dryer? Everything is—I mean, outside of the dryer is a huge expanse of space; anything that’s not inside the dryer is outside the dryer, so I object to it as vague and ambiguous. Object to the form of the question.”

Jones Day did not immediately respond to a request for comment.

Updated at 3 p.m. to embed sanctions order.

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