Professionalism Is “Paramount”

When litigating in Delaware, out-of-state counsel must always remember to conduct themselves with the utmost professionalism and candor when dealing with opposing counsel and witnesses. In Delaware, even when a court is unaware of any perceived abusive deposition or litigation tactics, a Delaware court can raise sua sponte the conduct of counsel at any time.  

In Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34 (Del. 1994), an interlocutory appeal was filed with the Delaware Supreme Court during a lawsuit arising from the corporate control of Paramount Communications, Inc. In Paramount, disparaging conduct by counsel defending a deposition caused the Court sua sponte to raise “a serious issue of professionalism involving deposition practice in proceedings in Delaware trial courts.” Id. at 52. The Court’s opinion described the conduct by counsel as “[o]ne . . . worthy of special note as . . . a lesson of conduct not to be tolerated or repeated.” Id. Although the deposition did not take place in front of a judge or vice chancellor, the Court found that Rule 3.5(c) of the Delaware Rules of Professional Conduct was implicated.

Counsel Can’t Aid the Witnesses

During a deposition, out-of-state counsel should also keep in mind the limitations on communications between the witness and their counsel. Delaware Court of Chancery Rule 30(d)(1) expressly places restricts on communications between a witness and their counsel during a deposition (including any recess during a deposition).

Chancery Court Rule 30(d)(1) states in pertinent part the following:

(d) Schedule and duration; motion to terminate or limit examination. –

(1) From the commencement until the conclusion of a deposition, including any recesses or continuances thereof of less than five calendar days, the attorney(s) for the deponent shall not: (A) consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order, or (B) suggest to the deponent the manner in which any questions should be answered. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the Court, or to present a motion under paragraph (d)(3).

Objections Cannot Influence Testimony

In the realm of securities class action cases, many times counsel will use verbose, combative, or suggestive objections (also known as “speaking objections”) during a deposition to give their witness an opportunity to place a self-serving answer on the record. However, for the exception of objections to form or privilege, Delaware strongly discourages and prohibits speaking objections. Specifically, the Delaware Court of Chancery, on a couple of occasions, has voiced its displeasure with speaking objections. For example, in SinoMab Bioscience Ltd., et al. v. Immunomedics, Inc., C.A. No. 2471-VCS former Vice Chancellor Strine held that counsel’s speaking objections were improper finding that “there's no wiggle room about whether what your partner did was an inappropriate way to object at a Delaware deposition. Not gray. Clearly wrong.” Id. at 62-63.  The Court ultimately issued sanctions and awarded attorneys’ fees, in part, to remedy the improper speaking objections. See the Court’s order granting attorneys’ fees here.