Deposition Practice – Lawyer Admonished for Failing to Control “Ridiculous” Deponent

The Supreme Court recently heard consolidated appeals in the matter of In Re: Shorenstein Hays-Nederlander Theatres LLC Appeals; however, the issues appealed were of secondary importance to the deponent’s deposition misconduct.  In the Addendum to its Opinion, the Court quoted and addressed the deposition conduct of Carole Shorenstein Hays, a co-fifty percent owner of Shorenstein Hays-Nederlander Theatres LLC, one of the entities subject to litigation, and her counsel’s silence under its “exclusive supervisory responsibility to regulate and enforce appropriate conduct of … all lawyers, litigants, witnesses, and others’ participating in a Delaware proceeding.”

Ms. Hays deposition conduct was, as the Court put it, “ridiculous [and] … flippant.”  The following excerpt serves as a representative but incomplete picture of Ms. Hays conduct:

  • Q. When was SHN founded?
  • A. At the beginning.
  • Q. In what year?
  • A. The year it was founded.
  • Q. Can you give me a year?
  • A. No.
  • Q. Who founded it?
  • A. I was there.
  • Q. What do you mean when you say you were there?
  • A. I was there at the very beginning when it was – at the very day one.
  • Q. Does that make you a founder?
  • A. Does giving birth to a child make you a mother?
  • Q. Yes, but that wasn’t my question. My question was, the fact that you were there, does that make you a founder?
  • A. I believe it’s semantics.

Ms. Hays’ pro hac counsel at no time attempted to “rein in” his client and allowed the absurd responses to continue. The Court noted that counsel has “a responsibility to intercede and not sit idly by as their client engages in abusive deposition misconduct … [a]n attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing.”

Delaware attorneys should be forewarned that they have an obligation to ensure that their out-of-state counsel follows Delaware customs and procedures during all the stages of litigation – including controlling a flippant client.

Read the full opinion here (the Addendum starts on page 51).

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