Courtesy of Prof. Bainbridge‘s blog, here is commentary on the recent  Redwood  decision by U.S. 7th Circuit Court of Appeals Judge Frank Easterbrook, regarding deposition practice that His Honor found contemptible enough to state that it would have been acceptable for the party who was the subject of abuse to walk out. This is an important observation in my view, because the rules in Delaware, based on the Federal Rules of Civil Procedure, prohibit one from instructing a client not to answer a question except for very limited reasons, such as privilege, and the only other option is to stop the deposition to file a Motion for Protective Order. This case is a concrete example of the need to avoid letting the emotions of clients control the lawyers, as opposed to the following the decorum prescribed by the rules, in a deposition.

It is not always easy to draw the line between what has become part of  the "rough and tumble" of a deposition, as opposed to what abusive behavior rises to the level that justifies someone walking out of the deposition. Now, Judge Easterbrook has given us a concrete example to help business litigators answer that question. We have written before on this blog about litigation practice, and notably Judge Easterbrook refers in his opinion to the high (low?) watermark in deposition practice as discussed by the Delaware Supreme Court in Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 52-57 (Del. 1994). The Redwood decision linked about is useful reading for every litigator that takes or defends depositions.