Deposition Tactics in Employment Discrimination Cases: Preventing Abuses

Whether it’s a disability discrimination or sexual harassment claim, employment discrimination cases in general tend to be very fact-intensive, making the discovery process and depositions in particular all the more critical. As the moving party, it is the employee’s ultimate burden to prove discriminatory bias which, as discussed here, can be inferred in several ways. Generally, the greater the opportunity to gather information through the discovery process, the better an employee’s chance of prevailing at trial.

The opportunity to gather sufficient evidence, however, can be severely hindered where an employer engages in obstructionist tactics. Namely, in depositions, such tactics take the form of speaking objections, witness coaching, and improperly instructing a deponent not to answer a particular question. In addition, even after a deposition, a deponent may attempt to distance his or herself from unfavorable testimony by making substantive changes to an errata sheet.

As detailed below, both the Massachusetts and Federal Rules of Procedure contemplate a wide latitude for parties to gather evidence through the discovery process. Moreover, numerous judicial opinions have rebuked counsel for flaunting the rules and interfering with the collection of information. Sanctions for such violations include paying the attorneys’ fees and costs associated with a protective order, attending continuing legal education courses, and reprimands by the local bar association.

1. Wide Latitude for Discovery

  • MRCP 26(b)(1): “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action …. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”
  • FRCP 26(b)(1) uses much of the same language as the Massachusetts corollary with the exception of a newly imposed “proportionality” requirement which, as discussed here, has the potential to create hurdles for plaintiffs in employment cases.
  • Hope v. Double E Corp.“A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.”
  • Gagne v. Reddy, 104 F.R.D. 454 (D. Mass. 1984): “[D]iscovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought can have no possible bearing upon the subject matter of the action.”

2. Speaking Objections

  • MRCP 30(c): “Any objection to testimony during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. Testimony to which objection is made shall be taken subject to the objections.”
  • MRCP 30, Reporter’s Notes: “Despite the 1998 amendment which requires that objections be made in a non-argumentative and non-suggestive manner, suggestive objections or comments continue to be made at depositions. Further commentary is therefore in order. The intent of the 1998 amendment was to prevent the indirect coaching of witnesses by objections or comments from counsel. Thus, the attorney who, after a question, interjects the suggestive objection or comment ‘if you remember,’ ‘if you understand,’ or ‘if you have personal knowledge,’ acts contrary to the language and spirit of the new rule by indirectly suggesting how the witness should respond. The questioning attorney may consider taking appropriate action in response to such coaching suggestions, including suspending the deposition for purposes of obtaining an appropriate court order ….”
  • FRCP 30(c)(2): “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.”
  • FRCP 30, Notes of Advisory Committee on Rules (1993 Amendment): “Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.”
  • Security National Bank v. Abbot Labs: Penned by Senior Federal Judge Mark W. Bennett, this is perhaps the most comprehensive decision to-date detailing standards for deposition conduct.
    • “Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. The witness – not the lawyer – gets to decide whether he or she understands a particular question.”
    • “While it is impossible to know for certain what a witness would have said absent Counsel’s objections, I find it inconceivable that the witnesses deposed in this case would so regularly request clarification were they not tipped-off by Counsel’s objections.”
  • Cincinnati Insurance v. Serrano: Interestingly, this decision resulted not only from plaintiff’s motion for protective order, but also defense counsel’s request for clarification on how to properly preserve objections as to form.
    • “Instructions to a witness that they may answer a question ‘if they know’ or ‘if they understand the question’ are raw, unmitigated coaching, and are never appropriate. This conduct, if it persists after the deposing attorney requests that it stop, is misconduct and sanctionable. Mr. Schmidt’s parenthetical after a question ‘If you know the difference between the two’ is in the same category.”
    • “Only the witness knows whether she understands a question, and the witness has a duty to request clarification if needed. This duty is traditionally explained to the witness by the questioner before the deposition. If defending counsel feels that an answer evidences a failure to understand a question, this may be remedied on crossexamination.”
  • Calzaturficio S.C.A.R.P.A., s.p.a. v. Fabiano Shoe: “Mr. O’Connor also improperly ‘interpreted’ questions for the witnesses, coached them as to how to answer and engaged in lengthy speaking objections and colloquies. Despite Mr. O’Connor’s protestations that he was often seeking just to clarify the questions, the record reveals otherwise. Counsel is not entitled to assist his witnesses during a deposition.”
  • Cholfin v. Gordon, 3 Mass. L. Rep. 356 (1995): “The lawyer representing a witness must make objections, when objections are required, succinctly and with the same brief precision required during the trial itself.”
  • Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993): This is an oft-cited case in discovery disputes. Below are two important principles highlighted by this decision.
    • “The underlying purpose of a deposition is to find out what a witness saw, heard, or did – what the witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers.”
    • “If the witness does understand the question, or needs some language further defined or some documents further explained, the witness can ask the deposing lawyer to clarify or further explain the question. After all, the lawyer who asked the question is in a better position to explain the question than is the witness’s own lawyer.”

3. Instructions Not To Answer

  • MRCP 30(c): “Counsel for a witness or a party may not instruct a deponent not to answer except where necessary to assert or preserve a privilege or protection against disclosure, to enforce a limitation on evidence directed by the court or stipulated in writing by the parties, or to terminate the deposition and present a motion to the court pursuant to Rules 30(d) or 37(d).”
  • FRCP 30(c)(2): “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”
  • FRCP 30, Notes of Advisory Committee on Rules (1993 Amendment): “Directions to a deponent not to answer a question can be even more disruptive than objections. The second sentence of new paragraph (1) prohibits such directions except in the three circumstances indicated: to claim a privilege or protection against disclosure (e.g., as work product), to enforce a court directive limiting the scope or length of permissible discovery, or to suspend a deposition to enable presentation of a motion under paragraph (3).”
  • Specht v. Google: “Mr. Fleming egregiously violated Rule 30(c)(2) by instructing Mr. Murphy not to answer a question because his answer would be a ‘guess.’”
  • Howell v. Standard Motor Products: “The conduct of Howell’s counsel at her client’s deposition is completely indefensible …. The line of questioning pursued by Standard’s attorney – asking Howell what acts of retaliation Standard took against him because of his claim for benefits under FMLA – is certainly relevant to Howell’s claims in this matter, and should have been answered. The Court is unaware of any caselaw or provisions of the Federal Rules of Civil Procedure that support the position taken by Howell’s attorney that her client could refuse to answer a deposition question on the grounds that it called for a legal conclusion.”

4. Substantive Changes to an Errata Sheet

  • MRCP 30(e): “Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.”
  • FRCP 30(e): “On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.”
  • Smaland Beach Association v. Genova: In this decision, the Massachusetts Supreme Judicial Court made clear that a statement of non-conclusory reasons must accompany changes to an errata sheet; the deposition may be re-opened in response to such changes; the original deposition testimony is admissible at trial; and deponent’s counsel may be sanctioned if substantive changes are submitted in bad faith.
    • “[W]e do not import this expansive reading without limitations necessary to guard against manipulation of rule 30 (e). First, counsel must understand and should explain to deponents that any changes they make must represent their own good faith belief, and may not be undertaken simply to bolster the merits of a case. Second, counsel must ensure that any submitted changes comply with the procedural requirements of rule 30(e). We emphasize, in particular, the instruction that a statement of reasons must accompany the change. These reasons must be advanced in good faith and provide an adequate basis from which to assess their legitimacy; that is, they must not be conclusory. Like other courts employing a similar interpretation of rule 30(e), we also adopt certain remedial measures.”
    • “Like other courts employing a similar interpretation of rule 30 (e), we also adopt certain remedial measures. First, because the text of rule 30 (e) does not require that the original answers of the deponent be struck, the original answers remain part of the record and may be read, along with the changed answers and reasons provided for the change, at trial. Second, in the interest of fairness, where the deponent has made substantive changes as to significant matters on an errata sheet that, if provided during the deposition, would reasonably have triggered further inquiry, the party who took the deposition can reopen the examination for the purposes of exploring matters raised by the substantive changes in testimony and the origins of those changes.”
    • “Finally, if there is any indication that an attorney has exploited the rule by arranging or facilitating the submission of errata sheets for the purpose of strategic gain in a case and not to correct testimony, his conduct may be grounds for sanctions. While substantive changes to errata sheets are permitted under rule 30 (e), we caution deponents and attorneys to invoke this privilege sparingly. The errata sheet is intended as a tool to correct mistakes in deposition testimony or subsequent transcription. It is not to be used as a mechanism to inject additional facts into the testimony of a single deponent, or to align testimony across deponents.”

Employment discrimination cases based on circumstantial evidence often require stitching together numerous pieces of evidence that, when viewed as a whole, allow for a strong inference of discriminatory bias. For this reason, employment law claims may not survive summary judgment where an employment attorney does not have a meaningful opportunity to conduct discovery as a result of obstructionist tactics.

While courts generally frown upon resolving such disputes, sometimes a motion for protective order is unavoidable. Objecting to discovery violations contemporaneously and insisting that opposing counsel refrain from obstructing the discovery process, often pursuant to a formal Superior Court Rule 9C conference, can go a long way in getting a sympathetic ear from the bench.

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