Civility at Depositions: Court Orders Veteran Attorneys to Play Nice in the Sandbox
August 12, 2022
When the Court orders you to attend a Continuing Legal Education (CLE) class on civility “for the harm [you’ve] done to the [legal] profession”– not to mention issues you five-figures in sanctions – you know you’ve done something very, very wrong. And that’s exactly what happened last month when Manhattan Commercial Division Justice Andrea Masley issued an Order (the “Order”) in Hindlin v Prescription Songs LLC, et al., censuring and sanctioning two seasoned New York attorneys for “uncivil and obstructive behavior” during depositions.
In this complex and contentious litigation, plaintiff Jacob Hindlin (a/k/a J Kash), a highly successful writer and producer of contemporary pop music, commenced an action in 2018 against music publishing and production companies owned by Lukasz Gottwald’s (a/k/a Dr. Luke), seeking a declaratory judgment regarding the parties’ rights and obligations concerning a series of agreements entered into in 2010.
The protracted litigation, which is scheduled for a jury trial on October 31, 2022, has a voluminous record replete with vigorous discovery motion practice leading to Justice Masley’s appointment of a special master to supervise discovery.
The deposition of Jaime Hindlin (plaintiff’s manager and wife), which led to the issuance of sanctions against two veteran attorneys, was conducted via videoconference. According to the Court, Ms. Hindlin’s attorney interjected 187 times with improper speaking objections and/or colloquy, and instructed Ms. Hindlin not to answer 30 questions without any lawful basis. The plaintiff’s attorney interjected 114 times with improper speaking objections and/or colloquy.
This led the defendants to move for sanctions against the two attorneys in connection with their “improper, incendiary, and unprofessional” conduct at Ms. Hindlin’s deposition. The Court issued a Case Management Order stating that that, upon its review of the deposition transcript, the Court found it necessary to appoint Judge Karla Moskowitz, a retired First Department Justice, to supervise Ms. Hindlin’s continued deposition.
In the Order, the Court, citing various treatises, statutes, and rules concerning the appropriate conduct of attorneys at depositions, admonished (to put it mildly) the two attorneys.
The plaintiff’s attorney, a member of the Committee on Character and Fitness for the First Department for nearly four decades, received the brunt of Court’s powerful rebuke. The Court noted that it was “not the first time [that the plaintiff’s attorney] has exhibited this type of unprofessional, bullying behavior in this action, though it was only brought to this court’s attention with this motion.”
For example, at his client’s December 2020 deposition, plaintiff’s counsel told the defendants’ attorney that he was “not very good at asking questions, but you are very good at interrupting others,” and that he was “really obnoxious.” At Dr. Luke’s deposition, he told his adversary to “wipe that silly smile off [his] face.” At a February 2021 non-party deposition, he called the defendants’ attorney “a joke,” telling him: “You have no knowledge of the law at all. You’re a joke . . . you’re nonsense.”
Judge Masley went so far as to suggest that such reprehensible behavior and conduct during discovery would have been sufficient to warrant dismissal of their clients’ claims. Unfortunately, the defendants did not move for that relief. And so, the Court chose to sanction the two attorneys for their conduct, which went well beyond “zealous” representation of their clients.
First, counsel was ordered to reimburse the defendants the attorneys’ fees and expenses incurred at Jaime Hindlin’s deposition and for making the motion.
Second, Jaime Hindlin’s attorney was ordered to pay $2,000 to the Lawyer’s Fund for Client Protection, while the plaintiff’s attorney was penalized $10,000.
Third, and perhaps most notable, Justice Masely ordered both attorneys to attend a New York State Bar Association CLE on civility within 30 days of her Order, and to submit to the Court an affirmation attesting to their attendance and whether they read the New York Standards of Civility as required. Justice Masley even directed that the CLE instructor utilize the transcript from Jaime Hindlin’s deposition in his seminar “as an example of uncivil sanctionable behavior.”
In addition to being an interesting read, the Hindlin decision serves as a friendly reminder to practitioners that a little decorum never hurt anyone.