Dr. Strangelaw or: How I learned to Stop Worrying and Love Deposition Disputes

A courtroom trial is the law at its most glamorous. Hollywood has made it so. Think Spencer Tracy, Gregory Peck, Al Pacino, Tom Cruise, Paul Newman, Denzel Washington, Joe Pesci, and many others.  We all know the roles and the scenes: the cross exams, courtroom speeches, fights with judges, one-liners, and dramatic objections. This is the stuff of legend.

Pity the lowly deposition. Depositions are much more common than trials, at least as vexing for witnesses, and a source of profit for lawyers, but never a fit subject for Hollywood. Until now. We are pleased to present: Dr. Strangelaw or: How I Learned to Stop Worrying and Love Deposition Disputes.

Dr. Strangelaw explores three recurring and frequently misunderstood deposition issues: the speaking objection, the propriety of instructing a witness not to answer based on relevance, and discoverability of a deponent’s conversations with counsel during a break.  These issues rarely make it to the attention of a judge via a motion to compel or motion for protective order.  Recently, with Robert “Bo” Ebby of Hangley Aronchick Segal Pudlin & Schiller, I co-planned a CLE held at the Pennsylvania Bar Institute entitled “Effective Depositions of Financial and Economic Experts.”  Two esteemed judges — The Honorable Mark I. Bernstein of the First Judicial District of Pennsylvania, and The Honorable Mitchell S. Goldberg of the United States District Court for the Eastern District of Pennsylvania – joined the seminar for a discussion on expert deposition issues, including deposition conduct issues; this aspect of the program applied to all depositions.

As a fun way of facilitating the conversation, we enlisted the technology wizards of Trial Technologies, Inc. to help us produce three video scenes of a fake expert deposition.  These scenes make up Dr. Strangelaw. After each scene, we discussed the issue with Judges Bernstein and Goldberg.  The judges’ opinions on the issues were enlightening and worthy of sharing.

The Speaking Objection. Both judges agreed that although a speaking objection is improper, there is ultimately not much a questioning attorney can do to stop the objection from being made and it is unlikely that it will ever be addressed by the court. But both judges also thought that in a rare case the practice might be brought to the attention of a judge and advised counsel to always make a record.

Instructing a Witness not to Answer. This scene probes the edge of relevance. It asks when is it permissible to instruct a witness not to answer on grounds other than privilege, i.e., relevance.  Both judges agreed that a defending attorney cannot instruct a witness not to answer a question on relevance grounds unless the question really goes beyond the pale.  For the specific issue presented in the video scene, the judges agreed that they would not permit a lawyer to ask an expert witness to provide testimony about the income of a spouse for the purpose of illustrating the importance of the fee to the witness when the same point could be made in a narrower, less intrusive way.   The takeaway is that it’s hard to know where the line is on instructing a witness not to answer on relevance grounds.  Perhaps the best we can do is say “we know it when we see it.”

Discoverability of Counsel/Witness Conversation. Here we explore the discoverability of communications with counsel at a break during the deposition.  The judges agreed that if the deponent is a client of the defending attorney, the substance of what is said is privileged, but the fact that the conversation occurred is not.  If the deponent is not a client, the deponent must disclose what was said.

Pennsylvania Falls in Line with Federal Rule on Non-Discoverability of Attorney/Expert Communications. On a related note, an evenly divided Pennsylvania Supreme Court has let stand an en banc decision of the Superior Court that held communications between a lawyer and an expert witness are not discoverable under Pennsylvania law. This is the same as the rule in federal court. The case involved application of Rules of Civil Procedure 4003.3, dealing with the scope of discovery and attorney work-product, and 4003.5, governing disclosures relating to expert witnesses.  As framed by Justice Baer, writing in support of affirmance, the two rules, and the case, present an attempt to balance competing policies of promoting the truth-determining process of an expert’s opinions with the protection of an attorney’s mental impressions.  Justice Baer concluded that the balance favored a bright-line rule barring discovery of attorney-expert communications, and noted that parties can seek discovery of information from expert witnesses through other methods that do not intrude on attorney work product, such as interrogatories and cross-examination.

(Cast in the role of the expert witness is Maureen Smith Lawrence of Hangley Aronchick.  Steve Harvey and David Dzara, both of Steve Harvey Law, played the questioner and defender.  Jim Decrescenzo played himself as the court reporter.)