In the recent opinion in the consolidated action of In re Shawe & Elting, LLC, C.A. No. 9661-CB (Del. Ch. Aug. 14, 2015), the Court of Chancery granted a motion for sanctions in connection with deposition misconduct of an attorney admitted pro hac vice in the action.  The basis of the motion was that counsel improperly instructed the witness not to answer many questions, despite failing to cite to a particular privilege.

Under Court of Chancery Rule 30(d)(1), “[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 [Rule 30](d)(3),” which may be made to this Court “or a Court of competent jurisdiction in the state where the deposition is being taken.” Ch. Ct. R. 30(d)(3).

Chancellor Bouchard found instructive Court of Chancery Rule 30(d)(2), which provides that “[i]f the court finds . . . conduct that has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any party as a result thereof.”

Because the Court found that counsel inappropriately directed the witness not to response to various questions without asserting a privilege or order of the court limiting the scope of the deposition, the Court found that counsel’s conduct did not comport with the Court of Chancery rules, and frustrated the deposition.  The motion for sanctions was granted, allowing opposing counsel to seek recovery for fees incurred in connection with preparation of and conducting the deposition, along with briefing on the motion for sanctions.

If you would like to speak to a litigator in Fox Rothschild’s Delaware office, please reach out to Sid Liebesman (302) 622-4237 or Seth Niederman (302) 622-4238.