All lawyers have had the experience at one time or another of being subjected to abusive discovery tactics during deposition. Although the rules of professional conduct are clear, New York state court judges only infrequently grant meaningful sanctions when this behavior is brought to their attention. As a result, lawyers who engage in sharp practice during deposition discovery may calculate that the likelihood of being sanctioned is low. Until the courts demonstrate a willingness to consistently take a firm stance on abusive discovery tactics, sharp-elbowed lawyers will continue to convince themselves that abusive conduct against an adversary lawyer or adversary client is a legitimate means of advancing their clients’ litigation goals.

One defense lawyer who may be compelled to re-evaluate his deposition conduct was recently sanctioned by Manhatten Supreme Court Justice Andrea Masley who granted plaintiffs’ motions for sanctions in a decision, filed on June 20, 2023, reported in the New York Law Journal on July 5, 2023. In Constantina Bacopoulou DDS PC v. Carnegie Dental PC, (Case No. 650010/2022), plaintiff sought damages arising from defendants’ alleged misconduct following the sale of the assets of defendants’ dental practice. Defense counsel made statements at a deposition including “Why don’t you ask these questions propertly…That’s your job as aprofession”, “Call the judge if you are upset”, calling defense counsel “obnoxious” and “needing a lecture”; asking “silly questions” and “You have no idea what you are talking about.” When plaintiff’s counsel asked if defense counsel was making these comments because she was a woman, defense counsel answered “Yes”.

Judge Masley found that the defendant’s statements at the deposition were violations of Rules of Professional Conduct 8.4(g), which states that “It is professional misconduct for a lawyer to engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors”. She also held that defense counsel’s conduct was sanctionable because “he clearly and repeatedly violated Commercial Division rules barring speaking objections.”

However, Judge Masley had harsh criticism of plaintiff’s counsel as well whom she held had “antagonized [defendant’s counsel] from the start of the deposition” and, instead of taking her deposition of the witness, “antagonized her adversary and engaged in gratuitous colloquy”. Thus, the Court found that “unnecessary and childish arguments between both counsel delayed the deposition”. As a result of this finding, when the Court appointed a special discovery master to oversee the case, she ruled that 25% of the special discovery master’s fees would be borne by plaintiff’s counsel.

Quoting the Hon. Lawrence K. Marks, Jeremy Feinberg and Laura Smith, ¶86.1 Scope note, 4C NY Prac, Com Litig in New York State Courts ¶86.1 [5th Ed.], “Judge Masley observed:

“Society at large, and the legal community in particular, is increasingless less tolerant of social sharp practices and sharp behavior that verges on harrassment. It is a question of enlightened self-interest for lawyers and their clients to be tough yet civil

Further, she remarked that “it is clear from the record that lack of civility among attorneys perpetuates scorn for lawyers, the courts, and ultimately the rule of law.

Litigation Tip #1: No matter how tempting it may be to engage in tit-for-tat with abusive opposing counsel, that behavior may reduce the likelihood that a motion for sanctions will be successful. Therefore, it is best to bite your tongue.

Litigation Tip #2: Biting your tongue does not mean that counsel should not protect their client from an abusive adversary or not make an appropriate deposition record.

Litigation Tip #3: Order an expedited copy of the transcript and draft the key points of your sanctions motion within 24 hours.