Litigation can be a contact sport. It is not for the meek or mild, certainly in emotionally charged or high exposure cases. While the line between permissble probing and abusive litigation tactics can blur, the New Jersey Appellate Division recently made clear that the nature and scope of inquiry during a deposition will rarely support a claim against an attorney for the intentional infliction of emotional distress, outrage and the like.
In Rabinowitz v. Wahrenberger, the parents of an infant filed a medical malpractice action against a hospital and emergency room physician for the death of their child. The parents claimed that the physician refused to admit their infant who later died at home of respiratory distress. The father summoned the local police and asked to speak to the chief of police because “he suspected that there had been a murder.” During his deposition, the defense lawyer probed the basis for the father’s reference to murder: did he refer to the hospital, the child’s nanny, baby nurse or possibly mother? Had anyone handled the baby roughly in the past? When the questioning continued, the plaintiff’s lawyer interrupted and said “if you ask one question that is suggestive of the garbage I just heard from your mouth, this deposition will end.” The following month, the plaintiff’s attorney on behalf of the parents filed the above mentioned action against the defense lawyer.
The trial court dismissed the parents’ action and awarded costs and sanctions against plaintiffs and their attorney. On appeal, the Appellate Division discussed the wide scope of New Jersey’s litgation privilege. The decision made clear that the privlege is applicable to communications made during judicial proceedings, pretrial investigation and now discovery depositions.
Good judgment should guide the scope of discovery on the part of all attorneys. However, it is our professional duty, at times, to ask unccomfortable questions during the course of the zealous representation of our clients. It is reassuring to know that we do not subject ourselves to personal liability because we ask the tough questions.