On July 30, 2022, Justice Masley of the New York County Commercial Division issued a decision in Hindlin v. Prescription Songs LLC, 2022 NY Slip Op. 32601(U), sanctioning lawyers for their uncivil deposition behavior, explaining:
Society at large, and the legal community in particular, is increasingly less tolerant of sharp practices and sharp behavior that verges on harassment. It is a question of enlightened self-interest for lawyers and their clients to be tough yet civil. During depositions, lawyers are expected to conduct themselves with dignity and refrain from engaging in acts of rudeness and disrespect. Accordingly, the court presumes that all attorneys, including Goodman and Rosenberg, two extremely experienced attorneys, are familiar with the rules governing depositions. . . .
Section 221.1. Objections at depositions, 22 NYCRR 221.1 provides:
(a) Objections in general. No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer
shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to article 31 of the CPLR.(b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.
However, even if they were unfamiliar with the rules, Goodman and Rosenberg were reminded and warned by Special Master Mark Alcott who was supervising discovery in this matter. In March 2021, Rosenberg appeared as counsel for plaintiff’s business manager, Zareh Bandari. Upon review of the transcript, Special Master Mark Alcott found that Goodman and Rosenberg improperly instructed the witness not to answer, and that Plaintiff’s counsel and the Deponent’s counsel collectively intervened with arguments, speeches and aggressive colloquy 325 times in a 255-page transcript. That is far too often for counsel defending a deposition. Special Master Alcott directed the deposition to resume, with an opportunity for defendants’ counsel to ask those questions that had been blocked and stated that counsel objecting to a question at the resumption of this deposition or at any future depositions must confine themselves to a terse statement of objection on a particular ground. The question must be answered unless a refusal to answer or an instruction not to answer is permissible within the strict parameters of the applicable
Uniform Rule.This is not the first time Goodman has exhibited this type of unprofessional, bullying behavior in this action, though it was only brought to this court’s attention with this motion.
A lawyer’s duty to refrain from uncivil and abusive behavior is not diminished because the site of the proceeding is a deposition room, or law office, rather than a courtroom.
. . .
The court orders that Goodman’s and Rosenberg’s uncivil and obstructive behavior will stop now. By any measure, their repeated conduct is sanctionable. A warning by Special Master Alcott was apparently not sufficient. While dismissal, the
(Internal quotations and citations omitted).
ultimate penalty, has not been requested, the court notes that gamesmanship and dilatory tactics during discovery, such as those exhibited here, have resulted in dismissal. As a resuIt of their concerted efforts to thwart this deposition, even after a warning following a prior deposition in this case, Goodman and Rosenberg are sanctioned. First, they shall, within 10 days of receipt of defendants’ affirmation of services, reimburse defendants the attorneys’ fees and expenses defendants incurred
on May 18, 2022 and for making this motion. Second, Rosenberg and Goodman shall each pay the Fund for Client Protection. Rosenberg is sanctioned $2,000 ($1,000 for this action which is doubled because he did not respect Special Master Alcott’s
warning). Goodman, who was not representing the deponent shall pay $10,000 as the penalty for the harm he has done to the profession after being cautioned by Special Master Alcott not to do so. . . . To ensure this conduct is not repeated, Goodman and Rosenberg shall each attend a CLE on civility within 30 days of the date of this decision and submit to the court an affirmation
attesting to their attendance and whether they complied with this court’s order that they read the standards of civility.