This happened somewhere out there:
Some of you may be surprised to learn that "annoyance" is in fact a valid legal objection. See Fed. R. Civ. P. 26(c)(1) (authorizing court to issue protective order to prevent "annoyance, embarrassment, oppression, or undue burden or expense" resulting from discovery requests). Of course, the whole system and especially discovery is annoying to start with, so something would have to be pretty frickin' annoying to justify making this objection all by itself.
I haven't seen Request No. 9 itself, so I can't say whether it was just annoying or annoying as a matter of law.
Last month the New York Times did a fantastic video reenactment of some truly ridiculous deposition testimony. See "What Is a Photocopier? (Deposition, Dramatized)," Lowering the Bar (Apr. 28, 2014) (direct link here). They are looking for more of that kind of thing, which I think is great news, and they asked me for help, which I also think is great. The posts linked below are the ones I recommended as mentioning possible candidates for reenactment, although I unfortunately don't actually have all of the transcripts.
I only have two pages of this depo, and there is almost certainly other good stuff in it, but these two pages alone would justify a reenactment and possibly also an off-Broadway run. Even if it ends up only being a monologue, it's an amazing monologue. I'm pretty confident the NYT will be reenacting "Follow the Chicken," and you will likely be reenacting it in your own mind for some time to come.
From the post:
Lowrey is the company's former public safety officer, and is expected to testify that he warned about certain dangers but was ignored. At Lowrey's deposition, Greka's attorneys did ask about that testimony, but according to the report, "focused much of their questioning on his claims that alienlike creatures emerge from his closet and put pinholes into his chest and those of his family members."
Needless to say, I would very much like to have this transcript.
This was about a 2008 hearing in the Connecticut state legislature in which the committee was considering a resolution to "exonerate" two women convicted of witchcraft in the 1600s. Granted, that was a long time ago, but did involve women being wrongly tortured and executed, so I thought maybe the committee chair could have taken it a little more seriously. I kept thinking of Fred Willard's clueless announcer from "Best in Show."
In 2011, the Wall Street Journal quoted testimony given by Scott Rothstein after he had pleaded guilty and was interested in cooperating with anybody who asked. (WSJ reports here and here.) In my favorite excerpt, he talked about how he tried to keep drugs out of his law office—though not because he had any issue with drugs: "It troubled me, probably because they were actually dealing the pot out of the office while I was in the middle of running a several-hundred-million-dollar Ponzi scheme." Yeah, I mean, how stupid can you be?
Joe Francis of "Girls Gone Wild" infamy (and frequent denunciations here) has been forced to give a number of depositions and has acted like a grownup in approximately none of them. In the one referenced in this post, he just pretended not to know what any English words meant. In a previous depo he reportedly made "repeated attempts to disrupt the deposition with flatulence," but I'm not sure if the NYT has any interest in reenacting that.
This post was about a Missouri case that must have generated at least three good depo transcripts, namely those of a young mother and the two identical twins with whom she had slept (on two different occasions) while they were all in town for the rodeo. (The involvement of identical twins is the answer to the title question.)
I'd guess that everyone involved in this case was a lunatic, with the possible exception of the lawyers. The deposition transcripts must be completely ridiculous.
This one is too short to reenact, but too good not to mention here.
Again, I would greatly appreciate getting copies of any of the relevant transcripts. Also, I'm sure that many of you have transcripts or excerpts that are at least as ridiculous as these. If so please send them to me. I'll pass on the best ones, and as always will provide credit or anonymity, whichever you want.
And surprise! He's a complete tool.
TMZ has posted several clips taken from the Biebs' recent 4.5-hour deposition in a case involving allegations that his bodyguard beat up a photographer. In this clip, which TMZ calls "Arrogant Bieber," it has put together examples of Bieber displaying his obvious contempt for the other side's lawyer and the whole process. At one point, for example, he claims not to remember whether he's ever been to Australia, just to be difficult.
The bit where he adjusts his outfit while looking into the camera (or possibly at a TV monitor) is also pretty good.
In this next one ("Disrespectful Bieber") he answers a number of the questions by more or less whispering while gazing directly into the camera. Does he think the jury will consist of teenage girls? But that's not the real highlight. The lawyer asks him whether Usher was "instrumental" to his career, which is followed by some argument about whether that's relevant. (Not sure why it would be, but that's not the point here.) Then there seems to have been a short break. When they come back, Bieber returns to that question and tries to emphasize his own role (at Usher's expense). But what he actually says is, "I was detrimental to my own career."
Which is true, but not responsive to the question.
Not long ago, The Hollywood Reporter posted this short excerpt from a video deposition of Wesley Snipes, taken in 2008 when he was defending a lawsuit by his former agency seeking unpaid commissions. In the excerpt, Snipes responds to a question about "the usual talent-agency/client relationship" with an extended analogy comparing agents to pimps, and actors to the "hos" that said pimps "represent":
The case later settled.
Snipes, who has been in over 40 films including "Jungle Fever" and the "Blade" trilogy, is currently appearing in McKean Federal Correctional Institution, in which he plays a man wrongly convicted of failure to file tax returns. His three-year run in the role of Inmate #43355-018 is scheduled to come to an end on July 19, 2013.
When judges get fed up with discovery disputes, this might happen:
Greetings and Salutations!
You are invited to a kindergarten party on THURSDAY, SEPTEMBER 1, 2011, at 10:00 a.m. in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas.
The party will feature many exciting and informative lessons, including...
- How to telephone and communicate with a lawyer
- How to enter into reasonable agreements about deposition dates
- How to limit depositions to reasonable subject matter
- Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of service when notice is reasonably given; and
- An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.
Invitation to this exclusive event is not RSVP. Please remember to bring a sack lunch! The United States Marshals have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.
The Wall Street Journal reported on Thursday that the parties and their attorneys had taken the hint -- not only did they resolve the subpoena issues, they settled the entire case. The kindergarten party was therefore canceled.
Added to the Noteworthy Court Orders page, joining such other notable discovery rulings as the one ordering the parties to resolve a dispute by means of a rock-paper-scissors match. (They got the hint there as well.)
Also from Cleveland (via the WSJ Law Blog) comes another story of lawyers doing battle, this time over the meaning of "photocopy."
The Cleveland Plain Dealer reported on a deposition taken in a dispute apparently before the Ohio Supreme Court over the cost of obtaining records from the county recorder's office. That case is likely otherwise a total snore, but the report describes a lawyer's effort to get a deponent to admit that his office had a "photocopying machine."
Plaintiffs’ Lawyer: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?
Deponent’s Lawyer: Objection.
PL: Any photocopying machine?
Deponent: When you say “photocopying machine,” what do you mean?
PL: Let me be — let me make sure I understand your question. You don’t have an understanding of what a photocopying machine is?
D: No. I want to make sure that I answer your question correctly....When you say “photocopying machine,” what do you mean?
PL: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?
D: I just want to make sure I answer your question correctly.
PL: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in an office setting what a photocopying machine is, I’d like the Ohio Supreme Court to hear you say so.
D: I just want to make sure I answer your question correctly.
DL: There’s different types of photocopiers, Dave.
And of course, the stakes being as high as they are, it gets personal:
D: I’m sorry. I didn’t know what that meant. I understand that there are photocopying machines, and there are different types of them just like –
PL: Are there any in the Recorder’s office?
D: — there are different cars. Some of them run under gas power, some of them under electric power, and I’m asking if you could help me out by explaining what you mean by “photocopying machines” –-
PL: That’s a great point.
D: -- instead of trying to make me feel stupid.
PL: If you feel stupid, it’s not because I’m making you feel that way.
According to the report, this goes on for 10 pages. The report didn't include a PDF of the transcript, so I can't say whether the guy ever got an answer to his question.
I'm also not sure whether it was a fair question or not [Update: I think maybe it was] which may seem ridiculous but the deponent's lawyer says at one point that the term "photocopy" is an issue in the case. The statute in question might be this one, which sets the fees that the county recorder can charge "when the photocopy or any similar process is employed." And it does set those fees at a remarkable 28 dollars for the first two pages and eight dollars a page after that. Seems like something should be done about that, but that may or may not be the issue in the case.
It also may or may not be a good idea to go to law school in search of fun, as this incident shows yet again.
On the other hand, you might be lucky enough to be in the room when a deponent suddenly decides to expound on all the advantages he's had "simply because I follow the chicken." And that might make it all worthwhile.
The piece below was my second column for Forbes.com. There have been two since, and I will get those posted here shortly. Forbes (the website, not Steve personally) has just posted my latest column, about a study finding that the more your boss makes, the meaner he or she tends to get.
One of the big issues in the practice of law these days is “e-discovery.” Since “discovery” is the process by which one party to a lawsuit tries to get useful information from another, you can probably guess that “e-discovery” involves digging through the other side’s electronically stored information or trying to keep them from digging through yours.
As Peter Henning (a former SEC lawyer) said recently, investigators searching through such information are especially interested in “any turn of phrase that can give them insight into what people were thinking” when they did the allegedly illegal, tortious, and/or stupid thing in question. E-mail searches can be especially valuable, he continued, “because e-mails are real-time and often unfiltered and can help to establish intent.” That is certainly true.
Because of the power of search engines, it pays to think creatively about what search terms might lead to interesting results. This applies both to potential diggers, whose searches will then be more effective, and to potential diggees, who should try to anticipate today what people may be searching for tomorrow.
This is yet another way in which we can learn from the bad example set by Lehman Brothers.
At least three lawsuits (so far) against Lehman and its former executives have made some use of search results obtained by bankruptcy examiner Anton Valukas, whose report on the circumstances of Lehman’s collapse was over 2,200 pages long. He and dozens of other lawyers searched through 34 million pages of internal Lehman documents, including 4.4 million emails, reportedly after brainstorming which search terms would be most useful. Because their searches seem to have been very productive, it is worth considering them in connection with your own e-mail practices. Perhaps you should print these out and post them where they will be most visible when your mouse pointer is hovering over the “send” button.
Here are a few of the actual search terms the examiner’s team used:
Personally, I’m not sure “let’s discuss” would be a very fruitful search term, but “big trouble” and “just between us” would definitely be on my list. In fact, I think starting any sentence with “just between us” is almost guaranteed to ensure that what you are about to say will not stay confidential, in the same way that it is usually a bad idea to precede any complex physical action with “Watch this!” or “I will now demonstrate.”
There were other phrases I noticed in some of the e-mails themselves that may or may not have been part of the team’s search terms, but which definitely are more examples of phrases to think very carefully about:
If the team did not search for those, it should have. I think I would probably add most of those to any list of e-discovery searches, no matter what the case is about. That last one especially could be a real gold mine.Additionally, although to my knowledge none of the following phrases surfaced in the Lehman emails, they occur to me as further terms to be carefully avoided:
Finally, should something unfortunate turn up in one of your emails, as a last resort you might try the “just kidding” defense. A version of this was one of the top three suggestions recently offered by Jeff Skilling, the former CEO of Enron (there are a few more terms to avoid right there), to aspiring white-collar criminals who would prefer to avoid his mistakes and therefore imprisonment: (1) plead the Fifth, (2) go on a public-relations offensive, and (3) “don’t be sarcastic.” (I assume he was limited to three, and that “be honest” would have been next on the list.)
For example, Skilling said he was “being sarcastic” when he said to a group of people at Enron, “they’re on to us.” The court interpreted that as an admission of guilt, but according to Skilling it was just the opposite. Only one who was truly innocent would sarcastically admit his guilt, you see. (Seems to me this defense would apply in a wide variety of situations.) Of course, “[s]arcasm is easily misinterpreted,” Skilling admitted, “and can be a tremendous liability.”
Let’s just replace “sarcasm” with “e-mail,” and leave it at that. It really would be safer.
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