Deposition Instructions Merited Sanction

An attorney's instruction to his client to refuse to answer deposition questions in a motor vehicle negligence case was improper, according to a decision of the District of Columbia Court of Appeals

During a deposition of Ms. Wendemu, her counsel, Michael O’Shea, instructed her not to answer two types of questions: (1) questions seeking the facts underlying an affirmative defense that Ms. Wendemu had asserted and (2) questions about whether Ms. Wendemu had sought medical treatment after the accident.

Merits

We decline to read a new exception into Rule 30(c)(2) that would cover Mr. O’Shea’s conduct. We therefore hold that Mr. O’Shea violated Rule 30(c)(2) by instructing Ms. Wendemu not to answer questions regarding her factual basis for an assumption-of-risk affirmative defense.

Having concluded that Mr. O’Shea’s conduct violated Rule 30(c)(2), we turn to whether the Superior Court exceeded its discretion by sanctioning Ms. Wendemu under Rule 30(d)(2). Courts typically reserve sanctions under Rule 30(d)(2) for “severe, repeated, and pervasive” misconduct.

Trial court sanctions

We discern no abuse of discretion in the trial court’s sanctioning of Ms. Wendemu for Mr. O’Shea’s violation of Rule 30(c)(2). Ms. Wendemu’s refusal to answer questions required Ms. Tesema to file a motion to compel and the parties to reconvene for a second deposition, delaying the discovery process. True, Ms. Wendemu and Mr. O’Shea covered the cost of the second deposition (which was conducted remotely) and fully answered all of Mr. Ollar’s questions in a process that took only four minutes. But litigating the motion to compel involved hours of work, and the reconvened deposition took place over three months later. Whether or not this court would have sanctioned such conduct in the first instance, the trial court was within its discretion in determining that resolving the motion to compel and conducting a second deposition delayed discovery and warranted sanctions.

Medical questions

We also conclude that the trial court acted within its discretion in sanctioning Ms. Wendemu under Rule 30(d)(2) for Mr. O’Shea’s instruction not to answer questions regarding her medical treatment. The instruction not to answer was improper, as the statute Ms. Wendemu invokes does not apply to her and there was no colorable claim of privilege.

No sanctions were imposed for the appeal, as the court found it was not frivolous. (Mike Frisch)