About two weeks ago, a deposition Paula Deen gave in the midst of an employment discrimination lawsuit became public. To say she burned her roux would be an understatement. I’ll leave to others the race and media issues: there’s plenty for us to explore as civil litigators, and much to learn from a disastrous celebrity deposition going public.
Criticism of Deen’s lawyers has already begun. Jack Chin at PrawfsBlawg concludes “Paula Deen’s participation in a deposition where everyone knew that she would say the things that she said reflects such catastrophically bad judgment that it is almost inexplicable,” suggesting Deen’s lawyers should have urged her to settle in advance of the deposition.
Surely all lawyers, plaintiffs’ side and defendants’ side, should keep their clients apprised on the risks of proceeding with litigation and the benefits of settlement, and I sure hope Deen’s lawyers advised her of the risks. That said, as a plaintiffs’ lawyer I can tell you that few plaintiffs’ lawyers will settle significant cases in advance of the defendant’s deposition for anything less than their highest demand. It’s possible Deen offered the plaintiff a fair and reasonable settlement, but the plaintiff held out for the whole stick of butter, not a dollop less.
Tommy Eden, an employment lawyer in Alabama, suggests:
Legally, the race discrimination claim should have been disposed of before the deposition on a motion to dismiss based on lack of legal standing by the white plaintiff. Second, the attorney should have never allowed Paula to answer the offensive, not legally relevant questions, or at the very least filed a motion for a protective order to keep the deposition testimony away from the press.
On the first point, Deen’s lawyers tried to do exactly that by filing a Motion to Dismiss or Strike the “Race Based Allegations,” but the Court hasn’t decided that motion yet. See docket, ECF 58. The defense lawyers who read this blog are likely aghast at the idea that, in a post-Iqbal world, a defendant could be deposed prior to the Court deciding the motion to dismiss, but the truth is that the Federal Rules of Civil Procedure do not require a Court to suspend discovery pending the motion to dismiss.
Sure, there are various tactics defense lawyers can use to delay the deposition, but at some point it becomes obvious that the defendant is just trying to obstruct the process, and that can have severe ramifications for them when the plaintiff eventually moves to compel the deposition and for sanctions.
On the second point, it’s not clear what Eden means by “the attorney should have never allowed Paula to answer the offensive, not legally relevant questions,” but, if he’s talking about the attorney jumping in and instructing the witness not to answer certain questions, I’d recommend he review my post from nearly two years ago, “Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences.” Fed. R. Civ. P. 30(c)(2) specifically says “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” (Emphasis added.)
The third issue, i.e., whether Deen’s lawyers should have “filed a motion for a protective order to keep the deposition testimony away from the press,” seems to me to be the strongest issue. I didn’t see any reference on the docket, in the Rule 26(f) report, or in the Magistrate Judge’s Discovery Order to a request for confidentiality of the depositions. Would such a request have been agreed-upon by the plaintiff? Probably not. Would such a request have been granted by the court? Maybe, which is why they should have at least tried it. Not asking for confidentiality with a celebrity deposition is like making Jambalaya without the Cajun Holy Trinity — which, apparently, is missing from Paula Deen’s recipe. (As someone who grew up near New Orleans, I assure you this omission is scandalous in and of itself!).
The end result is that Paula Deen’s deposition was not confidential, which is how it became public: the plaintiff’s lawyers attached it to the first filing they could, which was a response to Deen’s appeal of the Magistrate Judge’s order. (As I explained in this post last year about medical implant data becoming public, documents and deposition testimony are not considered part of the public record until they are attached to a filing.)
There was another possible tactic Deen’s lawyers could have used as well. Obviously the race-based allegations were on their mind, given the Motion to Dismiss those allegations and the Rule 11 Sanctions letter they sent the plaintiff’s lawyers prior to Deen’s deposition. They should have filed a motion for protective order either before the deposition or even during the deposition asking the Court to limit discovery into the race-based allegations until after the Court ruled on their Motion to Dismiss.
It’s quite possible the Court would have rolled right over both objections, refusing to make the deposition confidential and ordering Deen to answer the questions, but they should have tried.
Beyond that, much of the criticism of Deen’s lawyers boils down to, in essence, ‘you should have told her not to say that,’ but her lawyers should be praised for not coaching her to lie in her deposition, both because (1) that would be unethical and (2) a party caught lying in discovery will be forced to eat every teaspoon of their burned roux. Similarly, I don’t think comparisons to Martha Stewart are apt. There’s a superficial connection — both may have stemmed from the lawyer’s failure to properly investigate their client’s testimony in advance — but Martha Stewart’s lawyers had an option available to them that Paula Deen’s didn’t: they could have simply refused the interview entirely by asserting the Fifth Amendment, and thereby would have wholly avoided the obstruction of justice charge that resulted.
One final point I couldn’t help but notice when reviewing the Magistrate Judge’s Discovery Order. I obviously have no idea if any of the plaintiff’s allegations are true, but, either way, it seems Deen’s lawyers were engaged in scorched-earth tactics against the plaintiff, and had picked up on her various issue in her personal life — e.g., her sexual orientation and sexual history — and had explored those issues, it should be said, with far more thoroughness than Deen’s businesses had explored the various complaints against “Bubba,” Deen’s brother who is at the heart of the plaintiff’s complaint. It is no surprise that the plaintiff and her lawyers asked those questions and put the answers into the public record. Right or wrong, tit for tat is standard practice in litigation; if you can’t stand the heat, stay out of the kitchen.