Counsel’s conduct at deposition violated both Rules of Professional Conduct and Commercial Division Rules
In Constantina Bacopoulou DDS PC v Carnegie Dental P.C., 2023 NY Slip Op 32085 (N.Y. Sup. Ct. 2023), a case from the Commercial Division in New York County, Justice Masley decided a motion by plaintiff’s counsel which sought sanctions against the attorney for defendants for, inter alia, alleged misconduct and time wasting during a non-party deposition.
The Court noted that counsel for the defendants’ statements at the deposition were clear violations of the Rules of Professional Conduct 8.4(g), and highlighted a number of inappropriate statements by counsel:
NYSCEF 75, Bronstein Depo tr at 23:5-9 [“Why don’t you ask these questions properly? …That’s your job as a professional], 23:23-25 [“Call the judge if you are upset”], 154:13-156:19 [accusing Stallone of tricking the witness and yelling], 229:25-230:5 [explaining to the witness how a deposition works remarking “this is really how we do it,” apparently in contrast to how Stallone took the direct examination of the witness], 297:14-298:22 [challenging Stallone’s understanding of how to take a deposition and accusing her of “putting on an act”], 448:24-449:4 [accusing Stallone of playing games], 452:25-453:9 [calling Stallone obnoxious], 458:5-14 [accusing Stallone of yelling at witness], 468:21-469:13 [accusing Stallone of interrupting him and calling Stallone obnoxious, again, directing Stallone to calm down and admonishing Stallone that she “needs a lecture”], 480:15-16 [“You have no idea what you’re talking about”], 483:10-11 [accusing Stallone of asking silly questions], 512:6-12 [when Stallone asked if making these comments because she is a woman, Porter answered “Yes”].)
Constantina Bacopoulou DDS PC v Carnegie Dental P.C., 2023 NY Slip Op 32085 (N.Y. Sup. Ct. 2023)
Justice Masley determined that “Porter’s inappropriate statements were admittedly motivated by Stallone’s gender . . . [and s]uch unprofessional conduct is sanctionable,” and that “[Defense counsel’s] admission clarifies the context of his otherwise inappropriate statements permeating the nine-hour deposition as deliberately offensive and gender based when in context.
Justice Masley also determined that Porter’s “conduct is sanctionable because he clearly and repeatedly violated Commercial Division rules barring speaking objections:”
NYSCEF 75, Bronstein depotr at 106:5-14, 109:6-111:2, 111:14-112:2, 151:23-152:21, 154:13-156:19, 446:4-21, 448:3-18, 491:14-17, 492:18-493:12, 494:11-18, 499:11-16, 500:4-21.) He directed the witness not to answer questions. (Id. at 174:11-12, 483:6-7.) He also repeatedly cut off the witness. (See e.g. Id. at 270:16-20, 295:17-297:13, 403:21-25 [admitting that he cuts off the witness].
Constantina Bacopoulou DDS PC v Carnegie Dental P.C., 2023 NY Slip Op 32085 (N.Y. Sup. Ct. 2023)
Next, Justice Masley turned to the conduct of opposing counsel, determining Stallone contributed to the delay with unnecessary bickering with Porter and engaged in some speaking objections as well. For example:
“MR. PORTER: So let’s be clear about this –
MS. STALLONE: Stop it, Mr. Porter
MR. PORTER: – that means that you’ve lied before. No. You’re tricking him. That means he lied in his letter when he said this is what happened; is that what you’re saying?
MS. STALLONE: Mr. Porter, stop it, it’s not your testimony.
MR. PORTER: No. It’s not your time to make this man – turn him into a liar, when he is not a liar.
MS. STALLONE: Dr. Bronstein, you’re a Harvard grad, you don’t have to take what he is saying seriously.
MR. PORTER: Oh, you don’t have to take me seriously? You just accused him of being a liar. His October 2nd letter says these people all made these statements, and now you’re having him say that they didn’t make these statements. You have now turned him into a liar, that’s what you did.
MS. STALLONE: What he is doing is making speaking objections to try to coach you.
MR. PORTER: I am not trying to coach him.
MS. STALLONE: It is completely improper.
MR. PORTER: But I can tell you, if you want me to clarify.”
(Id. at 485:7-486:16.)
Constantina Bacopoulou DDS PC v Carnegie Dental P.C., 2023 NY Slip Op 32085 (N.Y. Sup. Ct. 2023)
The Court found that “Stallone antagonized Porter from the start of the deposition. There was no reason for Stallone to warn Porter against speaking objections since the law and stipulations included such a provision . . . Later, Stallone directed the witness to ignore Porter (NYSCEF 75, Bronstein Depo tr at 151:12-15) and to not take Porter seriously. (Id. at 485:21-23.) Stallone repeatedly threatened to call the court evolving into a hollow threat. (Id. at 9:5-8, 297:6-9, 298:11-22, 509:22-25, 510:25-511:3, 512:20-21, 513:6-21.)”
In the end, Justice Masley ordered sanctions against Porter for the costs on the motion attributable to the deposition dispute and directed the appointment of a Special Discovery Master with that cost to borne 75% by Porter and 25% by Stallone, with no portion to be paid for by the clients.
Decision Date: June 20, 2023
Practical Practice Point
Not much to comment on here other than the obvious “don’t do what they did.”
That being said, however, we believe two of the criticisms directed at Stallone’s conduct at the deposition were actions taken by her that were, at the very least, defensible.
First, the Court’s criticism of Stallone for reminding Porter of the prohibition against speaking objections as being unnecessary because it is clearly set forth in the rules ignores the mandate in CPLR 3115:
(b) Errors Which Might Be Obviated if Made Known Promptly. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of persons, and errors of any kind which might be obviated or removed if objection were promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.
Making speaking objections in violation of the deposition rules is an irregularity in the conduct of persons which can be obviated by calling the misbehaving attorney’s attention to the rule and the need to follow the rule. Attorneys can, and have, changed their behavior when this rule has been called to their attention, and even the most remote possibility that the objection could be deemed waived requires affirmative action.
Second, criticizing Stallone for threatening to call the Court and not following through seems a bit harsh. Threatening to call a judge for deposition misbehavior is a tactic likely as old as depositions themselves, and there are many reasons to make the threat and then not follow through, chief among them “be careful what you wish for.”
For a further discussion on the Constantina Bacopoulou, supra, case see Incivility is Not Dead: Lessons on What Not to Do, our August 2023 article in the NYLJ which discusses misconduct and sanctions.