Depositions in Delaware are subject to rules of practice and procedure that are materially different in form and substance to what I have observed in many other states. Both the Delaware Chancery Court and the Delaware Supreme Court enforce the rules relating to deposition practice and take it very seriously.
In a seminar last week, Delaware lawyers C. Malcolm Cochran, IV and Norman Monhait joined with Vice Chancellor John Noble of the Chancery Court, on a panel that described the highlights of the “Delaware way” of taking and defending depositions.
They graciously agreed to share their materials with us which I linked when this post was originally written in 2011. Mike Cochran kindly allowed me to link here to an updated version of materials he prepared in 2015. Those materials address the parameters of proper conduct, especially by lawyers, in a deposition.
See generally, Delaware Supreme Court 2019 decision that addresses errant behavior by the deponent, that I highlighted on these pages.
The attached updated materials include cases and rules that any lawyer taking depositions in a Delaware proceeding should be familiar with if they want to avoid the wrath of the court and if they do not want their wallet lightened from the costs they might need to pay for not following the proper procedures and practices in this important aspect of Delaware litigation. The panel supplemented the materials linked above with a Chancery Court case that penalized an attorney by making him pay for the opposing side’s attorneys’ fees for a deposition in which the defending attorney improperly interrupted and interfered with the deponent’s answers. The Court emphasized that it “will not tolerate a lawyer supplanting a witness in a deposition”. In Re Fuqua Industries, Inc. Shareholder Litigation, 752 A.2d 126, 135-36 (Del. Ch. 1999).