Vulgar Deposition Language - Not Condoned by the Federal Judge

When a deposition goes south, sanctions will most certainly head north!!

- the Beagle

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Lawyer and Client Sanctioned Over Client's Conduct, Use of 'F Word' During Deposition

Shannon P. Duffy - The Legal Intelligencer 03-05-2008

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that his lawyer, Joseph R. Ziccardi of Chicago, at one point "snickered" at his client's conduct.

Ziccardi was also to blame, Robreno found, because he failed to stop his client's tirades and persuade him to answer questions.

"The nature of Wider's misconduct was so severe and pervasive, and his violations of the Federal Rules of Civil Procedure so frequent and blatant, that any reasonable attorney representing Wider would have intervened in an effort to curb Wider's misconduct," Robreno wrote.

"Ziccardi's failure to address, then and there, Wider's misconduct could have no other effect but to empower Wider to persist in his behavior. Under these circumstances, the court equates Ziccardi's silence with endorsement and ratification of Wider's misconduct," Robreno wrote.

As a result, Robreno concluded that both Wider and Ziccardi should be sanctioned under Rule 30 and Rule 37, and that Wider must appear for a new deposition which will be taken under the supervision of a federal magistrate judge.

Ziccardi declined to be interviewed, saying he did not want to make any public comments because the matter "is still pending."

In a footnote, Robreno seemed to apologize to readers for the coarse language he included in the opinion, but said "while the use of profanity in the opinion is distasteful, it is necessary in order to capture the nature of the offensive conduct displayed by the deponent."

The opinion includes lengthy quotes from Wider's deposition which Robreno said were "only a few examples" of Wider's misconduct.

"Wider's assault on the deposition proceedings involved three types of inappropriate behavior: 1) engaging in hostile, uncivil, and vulgar conduct; 2) impeding, delaying, and frustrating fair examination; and 3) failing to answer and providing intentionally evasive answers to deposition questions," Robreno wrote.

Throughout the deposition, Robreno said, Wider "sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity."

In one passage, GMAC's lawyer, Robert B. Bodzin of Kleinbard Bell & Brecker in Philadelphia, asked Wider to open a file so that Bodzin could ask questions about certain documents.

According to the transcript, as quoted in Robreno's opinion, Wider erupted, saying: "'I'm taking a break. F--- him. You open up the document. You want me to look at something, you get the document out. Earn your f------ money, a------. Isn't the law wonderful?'"

In another passage, Bodzin said: "We're going to adjourn this deposition if this happens again because you are offending every single person."

According to Robreno's opinion, Wider responded: "'Don't speak for anybody in here except yourself f--- face.'"

When Bodzin said he was speaking for himself and the court reporter, Wider said: "'If she had a problem with me she would say something. She knows it's [not] directed toward her. It's directed to you because you're a piece of s--- and a piece of garbage and I'm the only person in your life that is f------ up your world and I enjoy it.'"

Robreno said the transcript showed that Wider "used the word 'f---' and variants thereof no less than 73 times."

By contrast, Robreno noted, the word "contract" was used only 14 times.
"Such profuse vulgarity had no constructive purpose," Robreno wrote. "The court is left with the impression that such abusive language was chosen solely to intimidate and demean opposing counsel."

Wider's vulgarity wasn't the only problem, Robreno said.

"Equally serious is Wider's willful exploitation of the discovery process. Wider impeded the deposition by improperly interposing his own objections, delayed the proceedings by providing unnecessarily protracted answers and repeatedly interrupting counsel for GMAC's questioning, and proudly expressed his intent to frustrate his examination," Robreno wrote.

Wider abruptly stormed out of the deposition on several occasions, Robreno said, and the video shows that Wider "would follow his inappropriate, obstructive, or dilatory remarks with a gleeful smirk directed at his counsel, at the transcriptionist, and even directly at the camera."

At one point, Robreno said, Wider patted himself on the back "after a particularly odious instance of obstruction," in order to flaunt his abuse of the deposition process.

Robreno also found that Wider "often refused to answer questions, and, when he did answer questions, provided intentionally uncooperative and long-winded answers to straightforward questions."

In court papers, Ziccardi argued that Wider's refusal to respond to questions during his deposition was justified because many of GMAC's questions were irrelevant.

Robreno disagreed, saying the Federal Rules of Civil Procedure require a deponent to answer all questions -- even questions for which there is an objection -- unless the witness's lawyer explicitly instructs him not to answer or moves to suspend the deposition.

Ziccardi also argued that Wider's conduct was the result of provocative and accusatory questions from Bodzin.

Robreno flatly rejected that, saying: "This argument is simply astonishing. As evidenced in the video ... counsel for GMAC comported himself with courtesy, respect, and professionalism; this was no easy feat, considering Wider's unrelenting insults, vulgarity, and mockery, most of which were a direct assault on counsel for GMAC."

Bodzin's questions were "far from provocative," Robreno found, but instead were "relevant questions of the type seen in the ordinary course of a deposition in a commercial case."
Robreno found that Bodzin "exercised great restraint in the face of Wider's persistent attempts to incite him to anger" and "could not have been less provocative."

Ziccardi also argued that Wider suffers from a mental condition that explains his conduct and should be considered a "mitigating factor" in imposing any sanctions.

But Robreno refused to consider the argument, noting that Wider's doctor was present at a recent hearing, but was never called to the stand.

Ziccardi filed medical records under seal, Robreno noted, but failed to give copies of the records to opposing counsel even after he was ordered to do so by the court.

In a footnote, Robreno said that in the hearing, Ziccardi "purported to offer an apology to the court" for his client's conduct, but that "Wider himself remained silent throughout the proceedings."

In the final section of the opinion, Robreno explained why Ziccardi, too, must be sanctioned for Wider's misconduct.

"Throughout the deposition, notwithstanding the severe and repeated nature of Wider's misconduct, Ziccardi persistently failed to intercede and correct Wider's violations of the Federal Rules," Robreno wrote.

"Instead, Ziccardi sat idly by as a mere spectator to Wider's abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider's offensive conduct," Robreno wrote.

In a footnote, Robreno said the video showed Ziccardi "chuckling at Wider's abusive behavior" and Bodzin's comment that "'your snickering counsel is not appropriate either, because all you're doing is encouraging the behavior of your client.'"

In court papers, Ziccardi argued that he believed he had tried to curb his client's behavior, but that most of his efforts to do so occurred off the record.

Robreno was unimpressed, saying "even if this assertion is to be believed, Wider's continuing misconduct indicates that whatever efforts Ziccardi made were woefully ineffectual. In fact, Ziccardi's meek attempts to intercede and his otherwise silent toleration of Wider's conduct only emboldened Wider to further flout the procedural rules."

Although a lawyer may at times be "blindsided" by a client's misconduct, Robreno found that such a lawyer "cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down."