Icahn-Wachtell Lipton deposition feud provides a teachable moment

The dispute between counsel for CVR Energy, Inc. and the law firm of Wachtell, Lipton over the deposition of non-party Carl Icahn (who reportedly holds a large and controlling share of CVR) provides a terrific opportunity to consider what to do when one side believes the other side is taking unfair advantage of a deposition to obtain some illegitimate tactical edge.  According to reporting by the New York Law Journal and a joint letter to U.S. District Court Judge Richard Sullivan in the Southern District of New York, Wachtell Lipton's lawyers at Holwell Shuster pressed Icahn for information about what the Wachtell team claimed was relevant information but what the CVR/Icahn side claimed were highly sensitive commercial issues that had nothing at all to do with the case at hand.  Apparently, the questioning got to the point where Icahn and his lawyers got up and left the room, claiming that the deposition was being conducted in bad faith merely to press on and extract the allegedly irrelevant but sensitive information.  Wachtell's lawyers responded, effectively, "Who?  Us?  Bad faith?  Never!  We only seek relevant information within the broad meaning of the Federal Rules."  The joint letter to Judge Sullivan is instructive because it presents two entirely different styles of advocacy.  The CVR/Icahn side presents what amounts to a common sense plea with no citation to any case law but a compelling argument that Wachtell is playing a game:  get under Icahn's skin by asking about sensitive matters having nothing to do with the case in order to make the litigation problematic for CVR.  The Wachtell side responds in the same joint letter with an entirely different approach:  a brief-like, highly structured response complete with section headings and multiple references to case law emphasizing the breadth of discovery.  Among other things, Wachtell argues that as a matter of law, deposition witnesses are not at liberty simply to walk out of a deposition just because they don't like the questions they are being asked.  There is a slight reference to the relevance of the information, but the thrust is very much a law and order, "the rules say the show must always go on" tack.  No doubt, the CVR/Icahn move was extraordinarily risky and for sure not an advisable approach in most cases, based on the law that Wachtell's lawyers cite.  It will be interesting to see whether Judge Sullivan agrees with CVR/Icahn or whether he orders Icahn to sit back down, answer the questions, and perhaps even pay any incremental cost for re-starting the deposition.  Stay tuned.

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