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While “competitive obstructionism" in depositions has been around since the 80s and 90s, courts and bar associations have taken notice, and are more likely than ever to sanction and reduce attorney fees for violations of professional and ethical rules in depositions.
Is professionalism in depositions capable of returning? Or is a cooperative and professional bar – even in depositions - what California Appellate Justice William Bedsworth lamented as “the Marie Celeste . . . a ghost ship reported by a few hardy souls but doubted by most people familiar with the area in which it's been reported"?
The federal rules of civil procedure were amended to attempt to prevent unprofessional and discourteous behavior in depositions. In California, new attorneys have been required to take an oath to behave with dignity and integrity since 2014. The actions taken by courts and bar associations across the country are too numerous to list.
Still, the problem persists. Perhaps because when one side in litigation considers itself to be effectively playing hardball by being obstructionist or bullying in depositions it can be easy to respond in kind.
Since we are only accountable for our own behavior, here are a couple of tips on how to handle unprofessional behavior by opposing counsel at a deposition.