Oh No: The Tactical Importance of Civility in Discovery

Good trial attorneys present their case during discovery. About 95 percent of cases settle, so discovery is probably the closest a case will get to trial. This means that opposing counsel will probably be the only judge a case will ever have before it settles. Outside your firm and the client itself, only opposing counsel will see enough of a case to evaluate its strength, and they will see that case exclusively through discovery. Therefore, good litigators use discovery show that they can win at trial, which strongly incentivizes opposing counsel to offer or accept a favorable settlement. Somehow, this practice has come under the rubric of “civility.”

Which brings me to Alex Oh. On April 22, Oh accepted a position as the SEC’s Director of Enforcement. Six days later, she resigned. Observers quickly linked her resignation to a pending motion to compel and for sanctions against her regarding her client’s 30(b)(6) deposition. Oh later admitted that she had contributed to a “breakdown of civility.”

The plaintiffs alleged that Oh’s client, Exxon Mobil of Indonesia, committed human rights violations against them and their relatives to secure a natural gas facility in Indonesia. The plaintiffs had noticed Exxon’s corporate deposition pursuant to Rule 30(b)(6), and the corporation designated Mark Snell from its general counsel’s office to testify. The plaintiffs alleged that Snell gave non-responsive, misleading answers, which he read directly from eighty-five (85) pages of notes that Oh and her law firm prepared. Consequently, the plaintiffs moved to compel responsive answers and for sanctions.

The court granted the motion. The court’s opinion explained the basis for its decision:

At his deposition, [Mr. Snell] refused to answer most of the substantive questions posed to him. Instead, he repeatedly read nonresponsive statements verbatim from pre-prepared notes . . . .

Mr. Snell’s nonresponsive answers impeded his deposition. He failed to answer most of the substantive questions he was asked. Many of those questions went to the core of the plaintiffs’ case. Mr. Snell’s failure to answer them materially deprived the plaintiffs of information to which they are entitled.

Perhaps more egregiously, even when Mr. Pierson asked him simple foundational questions, Mr. Snell did not provide responsive answers to almost one-third of them. Mr. Snell’s refusal to answer such basic questions responsively suggests that he consciously intended to delay the deposition. He repeatedly refused to answer whether he had read testimony in preparation for his deposition. And he also hampered examining counsel’s attempts to lay foundation for his questions by refusing to establish the content of exhibits on the record. . . .

Upon through review of both the transcript and video, the Court has no doubt that Mr. Snell severely, repeatedly, and perversely obstructed his own deposition. That conduct merits sanctions.

The question is, why? Why did Oh fail to ensure that her corporate witness could answer the questions asked — as Rule 30(b)(6) required? Why have the witness recite his lawyers’ pre-written script, like a hostage reading a ransom demand? And if the witness was going to read his testimony verbatim, why not at least make sure the testimony was responsive? For the cherry on top, why do all of this on video, which the plaintiffs’ attorneys can gleefully play the witness’s stonewalling for the judge and jury as often as they like? What was Oh trying to accomplish, besides simple stonewalling?

Every deponent is a potential trial witness. Trial witnesses must demonstrate honesty, clarity, and a command of the facts. You can’t parade a bunch of ignorant know-nothings around a courtroom and expect to win a trial. Therefore, effective litigators prepare their witnesses to provide an honest, accurate command of the facts at deposition. Again, discovery is probably the closest a case will get to trial, which means that a deposition is probably the closest a witness will get to the stand. Strong deposition witnesses lead to a stronger case, which leads to a better chance of victory at trial, which improves your chances for a favorable settlement. Even if the Exxon court had somehow denied the plaintiffs’ motion, Oh’s strategy still would have handed the plaintiffs a win by showing that a key witness would testify poorly at trial.

Let Oh be a cautionary tale. A lack of openness and civility during discovery can cost your client money in settlement or at verdict, and it can cost you your reputation.

(To learn how to use discovery to strengthen your case, click here.)