Litigators in Allegheny County, Pennsylvania, should take note of a recent opinion by Judge Philip Ignelzi that significantly amends and clarifies the rules governing counsel's conduct during depositions. On March 30, 2021, in I.L. v. Allegheny Health Network, et al., G.D. 18-011924 (C.P. Allegheny), Judge Ignelzi announced that in order to reduce the court's pretrial workload and expand the scope of responses that may be elicited from deponents (and in line with the Pennsylvania Rules of Civil Procedure), counsel's role in defending depositions will be more constrained. Objections that used to be commonly accepted will no longer be tolerated in the future, and counsel's failure to comport with the new ruling may subject them to sanctions.
Attorney Conduct During Discovery
The dispute in I.L. concerned the efforts of defense counsel to limit the deposition responses of his client, an obstetric physician alleged to have negligently advised a fetus' early delivery. The child suffered brain injuries during an emergency cesarean section performed by another doctor, and the child's parents brought suit. During a deposition, the plaintiff's counsel repeatedly questioned the physician about his expert opinion regarding the delivery, his own conduct and the standards of medical care.
Defense counsel objected to the questioning on several grounds, arguing that the physician did not have to respond to any calls for facts or expert opinions relating to the child's birth. It was also argued that the physician did not have to answer questions relating to medical records or events subsequent to his involvement in the pregnancy. The central premise of these arguments was that since the physician's involvement had ceased prior to the child's birth, he did not have to opine about it. Accordingly, after repeatedly instructing the physician not to answer, defense counsel unilaterally terminated the deposition.
When the case then went before Judge Ignelzi as the Allegheny County special motions discovery judge, he took the opportunity not only to clarify the bounds of discovery depositions, but more importantly, to put all counsel on notice as to how they are expected to comport themselves during depositions.
New Rules for Litigators in Allegheny County
Judge Ignelzi found no merit in any of the defense counsel's grounds for opposing the plaintiff's counsel's questions. Judge Ignelzi thoroughly recounted the applicable decisional law and rules of procedure regarding what is fair game in discovery, and relatedly, when and how counsel is permitted to object. See e.g., Pa.R.C.P. 4003.1, 4011(b), 4016(b). He then rejected the standards outlined by Judge Wettick in Acri v. Golden Triangle Mgmt. Acceptance Co., 1994 WL 16919157 (C.P. Allegheny May 4, 1994), where an active role had been encouraged for the deponent's counsel. Judge Wettick's rulings, particularly on discovery issues, carried great weight in regulating Allegheny County practice, so this new ruling will have a major impact going forward. Similarly, Judge Ignelzi rejected the "stipulation rule," allowing defendant physicians to avoid deposition questions about the standard of care if they stipulate that they will not give trial testimony as experts about that topic. See Howarth-Gadomski v. Henzes, M.D., 2019 WL 6354235, at * 6 (C.P. Lacka. Nov. 27, 2019) (summarizing the stipulation rule and related case law).
Instead, Judge Ignelzi adopted the approach set forth by Judge Gawthrop in Hall v. Clifton Precision, a Div. of Litton Systems, Inc., 150 F.R.D. 525, 531 (E.D. Pa. 1993), which contemplated that there could only be the most minimal interference into deposing counsel's questioning of the deponent, who would be compelled to answer questions broadly as long as they are reasonably calculated to lead to admissible evidence. Relying on Hall, Judge Ignelzi adopted two new rules to be applied to all depositions in Allegheny County cases:
- Any objection shall be stated concisely in a nonargumentative and nonsuggestive manner; and
- Counsel shall not direct or request that a witness not answer a question unless counsel has objected on the ground that the answer is protected by a privilege or a limitation on evidence directed by the Court.
I.L. v. Allegheny Health Network, et al., at p. 33.
Moreover, counsel may not terminate a deposition unilaterally unless doing so is "supported by a good faith factual or legal basis that, by necessity, could not be addressed by preserving an objection on the record or by submitting a prior motion for protective order." Id., at p. 34. Judge Ignelzi ended the opinion by warning counsel not to bring discovery deposition issues before the court unless they have fully comported with the above directives, as well as the highest standards of legal professionalism.
The I.L. opinion should be considered required reading for all Allegheny County litigators, lest they draw the ire of a special motions judge. While it may have once been permissible to actively spar with counsel who is asking deposition questions, I.L. marks the end of that practice. However, as Judge Ignelzi stressed, the adoption of a more liberal discovery process merely shifts the front lines to the trial stage, where the parties are now expected to make the bulk of their challenges to the admissibility of evidence.
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