Biglaw

Biglaw Partner Tries To Be Too Cute During Deposition, Gets Benchslapped For Antics

Now plaintiffs get a deposition do-over.

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Benchslapped-01Lawyers are much more used to taking or defending depositions than they are actually sitting for them. And the distinct roles of attorney and witness were highlighted when BakerHostetler partner Lee Rosebush was deposed in a case brought by Roche Diagnostics Corp. against Rosebush (and others) as a former director of Alliance Medical Holdings LLC over an alleged diabetes test strip insurance fraud scheme.

Special master Dennis Cavanaugh was… not impressed with Rosebush’s behavior during the depo, saying Rosebush was an “extraordinarily difficult and evasive” witness who “indeed spoke words, but did not provide answers.” That’s… a helluva burn.

Plaintiffs sought a re-do of the deposition and, Cavanaugh thought the evasiveness was even worse than the examples plaintiffs cited.

“In their moving papers, plaintiffs cite three or four examples of [Rosebush’s] evasiveness, but in the special master’s view, these examples do not fully encompass the extent of the deponent’s unwillingness to respond to counsel’s questions,” Cavanaugh wrote in his order on Friday, going on to describe parts of Rosebush’s testimony as “incomplete” and “answering a question that had not been asked.”

As reported by ABA Journal, the special master pointed out all the ways Rosebush’s deposition was problematic, despite the Biglaw partner’s protestations that he was harassed by repetitive questions:

Often, Cavanaugh said, Rosebush “interjected statements and asides which had no bearing on what was asked. He regularly maintained that a question had been ‘asked and answered’ and requested that the court reporter read back his answer, rather than actually providing a direct response.”

Throughout the deposition, Cavanaugh said, Rosebush was asked questions that “by any rational analysis, called for a simple ‘yes’ or ‘no,’ ‘I don’t know,’ or ‘I don’t recall’ response—or a reasonable variation thereof.” But Rosebush instead provided what the plaintiffs termed a “rote” response or answered a question that had not been asked.

Ultimately Cavanaugh decided Rosebush has to sit for another four-hour deposition to “provide responsive and concise answers to the questions presented.” And, just in case there are any shenanigans, Cavanaugh will be available during the deposition telephonically to adjudicate any disputes.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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