DANIEL D. CRABTREE, District Judge.
This court's Deposition Guidelines couldn't be clearer. They explicitly mandate that counsel cooperate with one another. They also mandate that counsel treat deponents and opposing counsel courteously. See Deposition Guidelines
Recently, the court learned that some counsel in this MDL proceeding have ignored the Guidelines. During one of the periodic Status Conferences, counsel provided several excerpts taken from an advance, rough draft of the transcript for defendant Heather Bresch's deposition. Ms. Bresch is Mylan's Chief Executive Officer. This sneak-peek wasn't flattering. Indeed, the conduct in the transcript excerpts concerned the court enough that it directed counsel to submit a full and final transcript of Ms. Bresch's deposition when available.
Counsel complied, submitting a soft copy of Ms. Bresch's transcript with a letter signed by counsel for the Mylan line of defendants, the Pfizer defendants, and the putative Class Plaintiffs. The court has read the entire transcript and it confirms the court's preliminary concerns. Here is an example why:
Heather Bresch Dep. at 29-32 (deposition taken Oct. 9, 2018).
This back-and-forth ended, but only when Sanofi's counsel interjected and redirected the combatants.
Id. at 32-33. Notably, Sanofi's interjection halted counsel's mindless bickering. See Green, 2010 WL 11435113, at *2 ("[C]ontrary to a deliberate rational, discussion about discovery matters, counsel instead simply bickered like children"). But more substantively, it manifested a general understanding among all counsel that the court's Deposition Guidelines control this proceeding's depositions.
The court can draw two conclusions from this deposition excerpt and, more broadly, from the first half of Ms. Bresch's deposition. First, counsel routinely violated Section 1 of the Deposition Guidelines. Indeed, Judge O'Hara's conclusion in Green applies equally here. "The transcript . . . does not reflect favorably on counsel for either side. Both attorneys . . . clearly violated the District of Kansas Deposition Guidelines." Id. Second, counsel's nonconforming behavior wasn't nonconforming because they didn't know any better. More than once, counsel referred to the Deposition Guidelines. E.g., Bresch Depo. at 30 (line 24). While counsel's disregard for the courtesy plank in Section 1 of the Deposition Guidelines is bad enough, the court finds other aspects of Ms. Bresch's transcript more troubling yet. Many times, Mylan's counsel ignored the Guidelines's provision forbidding verbose objections designed to coach the witness. Here's an example:
Bresch Dep. at 52. The witness's answer began where her counsel's suggestive objection had ended, i.e., "A: Yeah, what I was going to say is that the whole table does refer to a lot of clarifications about what the numbers represent." Id. at 53.
The court wouldn't tolerate a speaking objection like this one during a trial. And the Federal Rules of Civil Procedure make it equally impermissible during a deposition. See AKH Co., Inc. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2016 WL 141629, at *3 (D. Kan. Jan. 12, 2016) (quoting Rule 30(c)(2)'s requirement that an "objection must be stated concisely in a nonargumentative and nonsuggestive manner"); Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012) ("Instructions to a witness that they may answer a question `if they know' or `if they understand the question' are raw, unmitigated coaching, and are never appropriate." (emphasis in original)). Our Deposition Guidelines sharpen the point. Section 5(a) of the Guidelines provides:
Id.
Now that it has notice of counsel's departure from the Federal Rules and the Deposition Guidelines, the question becomes, "What should the court do about it?" Looking the other way isn't an option. Long ago, our court established its commitment to enforce the Guidelines, imposing significant sanctions against those who violate them. For example, in Ash Grove Cement Co. v. Wausau Insurance Co., Judge Rushfelt sanctioned defense counsel $500 for repeatedly violating the Guidelines. No. 05-2339-JWL-GLR, 2007 WL 689576, at *6 (D. Kan. Mar. 1, 2007). More recently, Judge Gale imposed substantive sanctions in AKH Company, Inc. In that case, the court permitted defendant to redepose two of plaintiff's witnesses after plaintiff's counsel had impeded their depositions with nonconforming conduct. Judge Gale also required the violating attorney—plaintiff's counsel—to reimburse defendant one-half the court reporters' cost for the two depositions and pay defendant one-half its attorney's fees incurred during the depositions. And Judge Gale awarded prospective relief: He required plaintiff's local counsel to attend all future depositions where the offending attorney—a lawyer admitted pro hac vice—planned to participate. 2016 WL 141629 at *4.
But to be fair, the court has imposed sanctions under the Guidelines only when asked to do so by one of the parties. And no one has filed a motion here. Indeed, most of the parties have asked the court to do nothing. When they submitted Ms. Bresch's deposition transcript, counsel provided a letter signed by all counsel except those representing Sanofi. It emphasizes—at some length—that no one is asking for sanctions.
Letter from Counsel dated October 23, 2018.
Reluctantly, the court has decided to forego a sanctions order but not because the parties have asked for that result. Instead, the court will forego a sanctions order because the letter from counsel reports that counsel, as a group, have mended their ways and redoubled their efforts, going forward, to resolve discovery problems peaceably. Still, the court has decided to issue this Order in the hope that it will reinforce the resolve of all participants in this MDL.
The court is serious about the principles embedded in the Deposition Guidelines, and it expects counsel to adhere to them assiduously in every case. Counsel's letter to the court identified the very reason why: "[T]his is an important case to all involved." The important rights at stake here deserve procedures that are rule-based and capable of promoting evidence-based factfinding. This case will not be controlled by the lawyer who blusters the loudest or longest.
One final thought is in order. The court is not naïve. High-stakes cases pitting sophisticated lawyers against one another may produce an occasional dust-up. But any deviations should be the rare exception, not the rule. The second half of Ms. Bresch's deposition proves that the court's expectations aren't unrealistic ones. In that portion of the deposition, the transcript shows general compliance with the Federal Rules and the court's Deposition Guidelines. Time after time, counsel preserved objections appropriately. See, e.g., Heather Bresch Dep. at 241:4-5 ("Objection. Foundation."), 242:12-13 ("Objection. Form. Compound."), 249:17 ("Objection. Form."), 250:14, 251:9-10, 254:8, 255:19, 257:9, & 258:24-25. And when a lawyer arguably deviated from the rules or the Guidelines, counsel resolved their differences quickly and courteously. See id. at 284-85.
Hoping to reinforce their resolve, the court orders all counsel who participate in depositions to read—or reread—the Deposition Guidelines. Also, the court orders counsel to follow them.