We have all heard the phrase time and time again: “Objection, your honor.” These are often the first words said to me after I tell someone I am an attorney, albeit jokingly. But what do these words actually mean, and when is an attorney actually permitted to make an objection during pre-trial discovery or during trial?
Protection of parties’ rights during pre-trial litigation is a fundamental right memorialized in every state’s rules of civil procedure. If an opposing party is seeking irrelevant or privileged information, for instance, an objection is the appropriate mechanism for an attorney to protect his or her client from improper discovery. In today’s age, however, some attorneys take advantage of the pre-trial discovery protections by asserting countless “form” objections that have no validity whatsoever. Whether these form objections are used as a delay tactic, to annoy the opposing party, to interrupt the flow of a deposition examination, or to increase costs and attorneys’ fees for the opposing party, some attorneys assert form objections as a matter of course. As illustrated by a recent decision from the Northern District of Iowa, judges are becoming increasingly irritated by the use of these meritless objections (as well as other improper discovery tactics).
In Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 598 (N.D. Iowa 2014), the plaintiff brought a product liability action against the defendant. During the course of the litigation, one of the defendant’s attorneys, during depositions, used excessive form objections, attempted to coach witnesses on numerous occasions, and interrupted the plaintiff’s counsel far too often. With respect to the form objections, the defendant’s counsel objected to the “form” of the examiner’s questions at least 115 times in two depositions, meaning that these form objections appeared on “roughly 50% of the pages” in the transcript.
During trial, the court addressed the defendant’s counsel’s conduct during depositions, issuing an order to show cause as to why the court should not sanction the attorney for the “serious pattern of obstructive conduct that [he] exhibited during depositions by making hundreds of ‘form’ objections that ostensibly lacked a valid basis.” After trial, the court acknowledged that it was “well within my discretion to impose substantial monetary sanctions on the defendant’s counsel.” However, the court was more interested in positively affecting the attorney’s obstructive deposition practices and in “deterring others who might be inclined to comport themselves similarly” to the defendant’s counsel. In light of this goal, the court imposed the following sanction: “Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified ‘form’ objections, witness coaching and excessive interruptions.”
Through the sanctions it imposed on the defendant’s counsel, the court made it clear that it would no longer tolerate obstructive deposition practices. In doing so, the court strongly criticized the current state of discovery practices in the legal profession:
Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught. As my distinguished colleague and renowned expert on civil procedure Judge Paul Grimm of the District of Maryland has written: “It would appear that there is something in the DNA of the American civil justice system that resists cooperation during discovery.” Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy and inexpensive determination of every action and proceeding.” It persists because most litigators and a few real trial lawyers — even very good ones, like the lawyers in this case — have come to accept it as part of the routine chicanery of federal discovery practice.
The deposition practices utilized in Abbott Labs. is not rare by any means. In fact, overzealous advocacy is commonplace in the legal profession, including the use of meritless form objections. The decision by the Northern District of Iowa should be a wake-up call to attorneys nationwide that this type of conduct is becoming increasingly intolerable.