Delaware Business Litigation Report

"It's Not a Crime Against Nature"--But It's Wrong!

In back-to-back hearings last month, Vice Chancellor Leo E. Strine, Jr., had occasion to stress his—and presumably the entire judiciary’s—intolerance for speaking objections at Delaware depositions. Both cases involved out-of-state attorneys and should thus serve as a reminder to Delaware counsel to inform co-counsel of the judiciary’s strict adherence to this policy. 

In Benton v. Guitar Center, C.A. No. 3075-VCS, Vice Chancellor Strine was so troubled by the defending attorney’s repeated speaking objections, which “unduly lengthened the deposition” and “obstructed the legitimate inquiries of counsel,” that he instructed Delaware counsel and the out-of-state attorney who defended the deposition to draft a letter to disciplinary counsel, enclosing the transcript. And in case that was not enough, he further instructed Delaware counsel to see to it that the out-of-state attorney come to town to chat with disciplinary counsel about the appropriate rules of conduct for a deposition in Delaware. See pages 4-5. 

Court: It's not a crime against nature. But it was -- I can only imagine how patience testing it was for the person taking the deposition, because I read it, and every single question, there were inappropriate speaking objections. It's just ridiculous. And people want to practice that way, they can practice in jurisdictions where inappropriate, ridiculous obstruction of questioning is tolerated. But this ain't one of them.

The attorneys in Benton faced particularly poor timing, though, as Vice Chancellor Strine had encountered a very similar issue the day before in a hearing for SinoMab Bioscience Ltd., et al. v. Immunomedics, Inc., C.A. No. 2471-VCS. There, Vice Chancellor Strine made clear, at pages 62-63 of the transcript, that there was no debate about the impropriety of speaking objections in Delaware:

Court: There’s no wiggle room about whether what your partner did was an inappropriate way to object at a Delaware deposition. Not gray. Clearly wrong.

. . .

It's not a crime against nature. It happens. . . . The best of us do it. But it doesn’t help to come and argue with the basic proposition that it was wrong.

At the hearing, Vice Chancellor Strine awarded costs to the moving party. After the hearing, when he granted the proposed order, Vice Chancellor Strine made clear that the award of costs, which included attorneys’ fees, was partially a remedy for the improper speaking objection. (See the comments section of the order.)

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