So in our last post, we pointed out that it is generally not advisable for a lawyer defending a deposition to cut short the deposition because the witness believes the questions are not relevant, whether that belief is couched in terms of relevance or harassment. That’s what happened in the Wachtell Lipton malpractice case being pursued by Carl Icahn’s CVR. As we anticipated, Judge Sullivan ruled today that Mr. Ichahn must resume his deposition and answer the questions he claims are irrelevant/harassing. Again, we have here an important reminder that whether or not the testimony at a deposition ever sees the light of day, the questions have to be answered unless they are truly out of bounds. Unless that standard is met, the Court is not going to look kindly on a witness who decides to decamp the deposition room. Does that mean the witness has no options? Of course not: if the issue can be anticipated, seek a protective order in advance; if the issue cannot be anticipated, call the court and seek an emergency ruling; if the court is not available, propose to push the questions to later in the deposition when the court will be available; if the court is not going to be available, propose a stronger confidentiality order and have the court reporter separately bind the subject testimony in a separate transcript, physically removed from the rest of the transcript. But just getting up and walk out? Not such a good idea, as the 26th richest man in America just found out.
As for advocacy, chalk one up for the lawyerly appraoch: as we pointed out last post, the Wachtell Lipton side presented a neatly structured and well-supported argument as to why Mr. Icahn’s decision to flee the deposition room was not appropriate. There certainly are times that one needs to argue more from the gut than from the brain, but, as with the decision to cut short a deposition, that’s the exception rather than the rule. Especially in federal district court, it’s going to be an uphill climb to counter a well-articulated and legally supported argument with a purely emotional plea. In classic argument, we call this the triumphs of logos over pathos. A dose of each is needed, but on papers in front of a judge, favor the logos.