I do not follow celebrity news gossip, but even I heard that Paula Deen was recently deposed and some are not happy about her testimony. CNN put the transcript on its website. The CNN link may not last, but federal court filings do. If someday the CNN link fails, the deposition was publicly filed as document 197-1 in case 12-cv-00139. The case may be accessed via PACER for the Southern District of Georgia. To be absolutely clear, I have not read the 149 page transcript or any of the filings in this case.
If I have not read the deposition, why am I posting about it? It is certainly not to add my voice to the celebrity gossip firestorm. Instead, the point of this post is to discuss a few issues that can arise when representing public figure clients. Paula Deen’s current case prominently highlights a few them. When a request to depose your public figure client arrives, what are some of your options to help avoid the firestorm currently surrounding Paula Deen?
Seek a Protective Order
NRCP 26(c) authorizes a court to issue a protective order, in certain circumstances, to govern discovery. If a litigant is a well-known public figure, one litigation strategy may be to leverage that profile against her to force a favorable resolution. I am not saying this occurred to Paula Deen. If you are defending the public figure, it may be prudent to seek a protective order before discovery begins. NRCP 26(c) permits “for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
But wait, court documents are public records so discovery materials are presumptively public! Probably not. In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) a religious organization sued a newspaper. The organization was concerned the paper would publish information it learned in discovery and sought a protective order. The newspaper appealed and argued the order violated its First Amendment rights. The Supreme Court of the United States disagreed and, in short, stated there may be constitutionally permissible reasons for a court to restrain the use of information gathered via the discovery process. The debate about this topic did not end in 1984. The legal community continues debating the extent to which information gathered via court-permitted discovery is or is not public. See Richard L. Marcus, A Modest Proposal: Recognizing (At Last) that the Federal Rules No Not Declare That Discovery is Presumptively Public, 81 Chi.-Kent L. Rev. 33 (2006).
Where representing a public figure, a protective order is one way to seek to focus the case and avoid a situation like Paula Deen is enduring.
Object to Apex Depositions
The Paula Deen lawsuit reportedly involved a restaurant in which she had some involvement. I do not know what level of involvement Paula Deen had in the daily operations of the restaurant in her lawsuit, but, for an example, consider Wolfgang Puck. Here in Las Vegas, it sometimes feels like Wolfgang Puck affiliated restaurants are nearly as ubiquitous as Starbucks, but typically with far better food. Obviously he cannot be involved in the daily operations of each of these restaurants and his other businesses. But if a customer files a run of the mill personal injury lawsuit against the restaurant, what is to stop the customer from then deposing Wolfgang Puck himself?
The response is to move for a protective order and rely upon the apex doctrine. Why?
Under the “apex doctrine,” courts sometimes grant protective orders barring the depositions of high-level corporate officers or managers who are unlikely to have personal knowledge of the facts sought by the deposing party. If a deponent is a high-level corporate officer who certifies that he or she has no personal knowledge of the facts, the court may grant a protective order requiring the deposing party to first seek discovery through less intrusive methods, e.g., from lower level employees who are more likely to have direct knowledge.
6-26 Moore’s Federal Practice – Civil § 26.105. The concept has been discussed locally in a case that resulted in a blog post
. Luangisa v. Interface Operations
, 2011 U.S. Dist. LEXIS 139700, 2011 WL 6029880 (D. Nev. 2011). Remember, it is difficult to qualify for an apex exception to deposition.
I do not know if Paula Deen would have qualified for the apex exception, but it is another tool to help control discovery for cases involving public figures.
At the Deposition: Do What You Can Within the Rules to Defend Your Client
What can you do to defend your public figure client if she is deposed? First, keep your head. I can appreciate how representing a public figure might create certain expectations and pressure. I can only urge you not to jettison everything you learned and practiced leading up to this moment, walk into a deposition and be a baddie. This blog has already discussed
what happens when good lawyers act out of character and the ramifications of those actions. Public figure client or not, the rules still apply.
Second, prepare your client. If the client is a public figure that is probably easier said than done. I can only speculate that the lawyers for Lil Wayne
and Lady Gaga
did not prep them to act as they once did. The public figure deponent must be ready, like any other client, to present their testimony in the best manner possible.
Third, although you as the defending attorney are a potted plant and there is little you can do, control what you can. Assert appropriate objections because, if your client is well prepared, she will remember an objection means there may be something wrong about the question which must be addressed. Take breaks when needed. It does not look good, especially in a video recorded deposition, to take a break in the middle of key testimony, or multiple breaks in the space of a few questions, but if your client is melting down its all you can do. Get the client outside the room, calm her down and try to restore sanity to the situation. Be wary however, as in some jurisdictions there is no attorney-client privilege during deposition breaks.
At the Deposition: Terminate and Move for a Protective Order, if Necessary
If everything else fails and the deposition questioning is simply out of line and control, consider terminating and moving for a protective order. I generally consider this the nuclear option but, as sadly documented by various posts on this blog, sometimes it cannot be avoided.
At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.
NRCP 37(d)(3). The converse is also true for the defending attorney. “If the court or discovery commissioner finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.” NRCP 37(d)(2).
As you contemplate whether to terminate your public figure client’s deposition, consider a few factors. The courts really do seem to consider termination the nuclear option. If you terminate a deposition, you had better have a rock solid reason for it or you will probably be paying for the continued deposition. Also, if you terminate your public figure client’s deposition, it is your duty to act as quickly as possible to file the motion for protective order. The courts likely understand there is a slight delay as you gather a transcript, but order a rush copy. If you do not act promptly, the courts may consider this a sign of bad faith. Finally, do you need to conduct a separate “meet and confer” conference before filing a discovery motion? There is no bright-line rule, but use common sense, assuming any remains if the deposition is so bad that you are terminating it. In such a situation, I typically find the reason counsel cannot agree is already in the transcript. A separate “meet and confer” would serve no purpose. Having said that, it may be beneficial to go the extra mile and initiate a separate “meet and confer” in the days after the deposition as you prepare the motion for protective order. It might be difficult to conduct but a day or two cooling period could facilitate at least a rational discussion of the situation and how best to proceed. I would not hold my breath, but it is possible.
The Deposing Attorney: Don’t Go Crazy
If you are deposing a public figure, the same “don’t go crazy” rule applies to you too. Also remember there are limitations about what an attorney can and cannot say publicly about his client’s case. There was once a local kerfuffle about those limitations. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
At the end of the day, public figure depositions can raise complications. I can only encourage the lawyers involved to recognize these potential complications early and try to stay ahead of them.
This article was originally posted on June 28 on Michael P. Lowry’s “Compelling Discovery” blog. Click here
to read the original post.