Improper Deposition Conduct Backfired; Forensic Examination Of Cell Phone Was Denied

Another A.I. Protective Order – Part 10

August 21, 2026

Published by Michael Berman at August 23, 2026

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Survivor A sued a school board and others arising out of alleged sexual abuse by the person who was then plaintiff’s teacher. Survivor A v. Anne Arundel Co. Bd. of Education, 2026 WL 2326237 (D. Md. Aug. 11, 2026)(Aslan, J.). A series of discovery disputes followed.

Because defense counsel improperly instructed a defense deponent not to answer questions, the Court ordered the deposition to be re-opened and cautioned counsel. Because the requestor failed to establish a foundation, the request for a forensic examination of the opponent’s cell phone was denied. Because one party impeded discovery, the opponent was awarded additional deposition hours. Because one party produced 1,600 pages of text messages after deposition, the deposition was re-opened.

INSTRUCTIONS NOT TO ANSWER DEPOSITION QUESTIONS

Plaintiff deposed school board employees. The Court wrote: “Survivor A contends that counsel for the School Board improperly instructed a witness ‘not to answer a basic question’ and tendered an excerpt of the deposition transcript in support of his claim…. The transcript excerpt reveals an unnecessarily contentious exchange between counsel, both in and outside the presence of the witness.”

The Court noted that, under Fed.R.Civ.P. 30(c)(2), deposition testimony is generally taken subject to objection. Instructions not to answer are limited to privilege, enforcement of a court order, and to present a Rule 30(d)(3) motion based on bad faith or an effort to harass. The Court also noted its Discovery Guideline which made it presumptively improper to instruct a witness not to answer, except under Rule 30(d)(3).

So, here is what the Court said happened:

Here, the deposition transcript reflects that the School Board’s counsel objected to Plaintiff’s counsel’s proposed line of questioning regarding text messages between Survivor A and Ms. Arnold [who was the “then-wife” of Survivor A’s “then-teacher”] and repeatedly instructed the witness not to respond….

The Court added:

When there is an objection to a deposition question, counsel are expected to rise above their roles as advocates for a particular party, and, acting as officers of the court, resolve their differences on the spot without outside intervention.… The transcript reflects that rather than “rise above,” counsel argued back-and-forth in front of the witness regarding the propriety of the questioning and the basis for instructing the witness not to respond and, ultimately, the School Board’s counsel contacted the undersigned’s Chambers. [cleaned up].

The ruling was unsurprising:

Nearly two decades ago this Court noted that “[i]t has been the law in this circuit for 20 years that lawyers may not instruct witnesses not to answer questions during a deposition unless to assert a privilege.” Boyd, 173 F.R.D. at 144 (citing Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977)). The School Board’s counsel did not assert privilege as the basis for his objection. Rather, he contended that Plaintiff’s counsel was asking about documents the witness had not seen previously … and was attempting to elicit an improper opinion…. The School Board’s counsel also argued that the question had no foundation … and asserted without particularity that Plaintiff’s counsel had been “badgering” the witness “all day with questions” …. None of these objections support an instruction that the witness should not respond to the questions posed. Counsel for the School Board’s instructions in that regard were therefore improper. Moreover, his behavior and language were unacceptable and inconsistent with this Court’s Discovery Guidelines, which require attorneys “to behave professionally and with courtesy towards all involved in the discovery process.” Local Rules, Appx. A, Guideline 1 ¶ d. Counsel for the School Board is cautioned that he must advocate within the bounds of this governing framework. The witness’s deposition will be reopened so that Survivor A may complete his questioning. [emphasis added].

FORENSIC EXAMINTION OF SURVIVOR A’S CELL PHONE

The school board sought a forensic examination of Survivor A’s cell phone. Survivor A’s counsel replied that the existence of that phone was known to defense counsel before Survivor A was deposed. Additionally: “Survivor A’s cellular telephone contains 1,428 text chains and approximately 7,000 photographs and 3,000 videos that span approximately eight years, and that some of the material is protected by privilege.”

Further, Survivor A reported that “Survivor A has worked with Defendants to find and produce voluminous discovery from the cellular telephone, including using 34 search terms, ‘most of which came directly from Defendants’ counsel.’”

The school board asserted that a forensic examination was needed for a complete record. But the Court wrote: “The School Board does not, however, identify any gap in Survivor A’s production…. Instead, the School Board posits that some material on the cellular telephone was deleted.”

The defense argument fell flat: “This argument carries little weight because it lacks an articulated foundation or timeline.”

In an argument that in my opinion borders on frivolous: “The School Board further contends that ‘Plaintiff’s counsel should not be the determinator [of] what information…should be disclosed to the defendants.’”

The Court wrote: “Yet, that is precisely how discovery operates. The discovery process is designed to be extrajudicial, and it relies on responding parties to search their own records and produce documents or other data.” [cleaned up].[1]

It also provided a detailed analysis of the predicate for requesting a forensic examination:

Federal Rule of Civil Procedure 34 governs, among other things, a request to “inspect, copy, test, or sample” electronically stored information, which includes forensic examination of electronic devices. Fed. R. Civ. P. 34(a)(1)(A)…. Making forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence…. What is more, the Advisory Committee on Civil Rules has cautioned that “[c]ourts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems.”…. A forensic examination of electronically stored information—something sister courts in this Circuit have described as “a drastic discovery measure,” … must therefore be proportional to the needs of the case. … A request for forensic examination is, among other things, “subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C), including the prohibition of discovery that is unreasonably cumulative, duplicative or seeks discovery that could be obtained from some more convenient, less burdensome[,] or less expensive source”. [cleaned up]

Applying those principles, the Court rejected the school board’s request:

Here, the School Board has not explained how Survivor A’s discovery responses are insufficient or why forensic imaging is warranted and proportionate to the needs of this case, particularly in light of the intrusive nature of a forensic examination of a personal cellular telephone.

The Court resolved other disputes, including one over additional deposition hours based on a post-deposition disclosure by Survivor A of 1,600 pages of text messages, resulting in an additional 3.5 hours of deposition.

Because of the school board’s “animosity” and because it had “foreclosed questioning altogether in at least one deposition,” Survivor A was granted 35 additional deposition hours.

For related information, see also:

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[1] See generally Unsupervised Self-Collection Predictably Led to Problems and “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System.