13 Jul Virginia: Medical Malpractice – a Lawyer’s Corporation
On June 15, 2015, in Osborne v. Mountain Empire Operations, LLC, No. 1:14CV00042 in United States District Court for the Western District of Virginia, Abingdon Division, the Judge found numerous Rules violations by medical malpractice defense counsel (LeClair Ryan) re a Rule 30(b)(6) corporate witness deposition. As a threshold matter, the Judge found the Court had an “independent obligation to enforce” the Rules, despite the parties’ case settlement agreement withdrawing Plaintiff’s Motion re the defense’s violations. Id. at 1.
First, Osborne held Defendant’s counsel was guilty of “inadequate preparation of the Rule 30(b)(6) witness,” having an “independent obligation to make sure that the rules were satisfied by the production of a properly-prepared witness”. Id. at 2-3. “The corporation must make a good-faith effort to designate people with knowledge of the matter sought by the opposing party and to adequately prepare its representatives so that they may give complete, knowledgeable, and nonevasive answers in deposition.” Id. at 2-3.
Second, Osborne held “defense counsel plainly violated the rules by instructing the witness not to answer certain questions,” simply because some questions were repetitive. Id. at 3. “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule . . . directing the witness not to answer the questions posed to him was indefensible and utterly at variance with discovery provisions”. Id. (citations omitted).
Third, Osborne held “counsel interjected comments after questions in ways that could have suggested answers by the witness or otherwise improperly interrupted the question and answer process.” Id. at 4. “An objection must be stated concisely in a nonargumentative and nonsuggestive manner,” and counsel properly is admonished for “repeatedly objecting and interjecting in ways that coached the witness to give a particular answer or to unnecessarily quibble with opposing counsel”. Id. (internal punctuation omitted).
If Plaintiff had not delayed filing her Motion and had been prejudiced by the Rules violations, the Court in Osborne may have ordered “remedial sanction, such as a retaking of the deposition at the cost of Defendants”. Id. Instead, Osborne admonished LeClair Ryan as counsel: “I trust that defense counsel will not repeat the conduct described here.” Id.