Lowering the Bar

Deponent and Counsel Jointly Sanctioned $367 Per F-Bomb

"Few depositions warrant sanctions more than this one," wrote Judge Eduardo Robreno (E.D. Pa.), in this opinion dated February 29, before embarking on an "extended discussion" of the conduct to show why.  The story and a PDF of the opinion were posted on the Wall Street Journal's Law Blog.

Generally speaking, the deponent, Aaron Wider of HTFC Corp., was taken to task for:

          1.  engaging in hostile, uncivil, and vulgar conduct;
          2.  impeding, delaying, and frustrating fair examination; and
          3.  failing to answer and providing intentionally evasive answers to deposition questions.

To be more specific, the court noted that, during his two-day deposition in this breach-of-contract case, Wider used the F-word "and variants thereof" 73 times (9.86/hour, or about one every six minutes), while using the word "contract" just 14 times.  And the F-word and its variants were by no means the only expletives being used, which gives you some sense of what the deposition was like.

The court concluded that the abusive language could only have been chosen "to intimidate and demean opposing counsel."  Apart from the obvious, the court noted that Wider repeatedly referred to opposing counsel as a "clown," and suggested that a later reference to "clown" verged on a physical threat:

Q.  My question is where are you currently employed?
A.  I'm not.  I just told you I work for free.
Q.  Okay.  You're not employed by HTFC Corporation?
A.  No, I own HTFC Corporation.  Be specific.
Q.  Okay.  And what do the initials HTFC mean?
A.  Hit That [Expletive] Clown.  That's what it means.  It's an acronym.

Maybe it does actually stand for that -- the details aren't provided on the company's website.  I notice that there is a state agency in New York called the "Housing Trust Fund Corporation," but this isn't it.  Wider's company, "HTFC Corp." (the Housing Trust Fund Corporation Corporation?), is a sub-prime mortgage lender, so the similarity to the state agency's name is surely just a remarkable coincidence.

The court also found that Wider "proudly expressed his intent to frustrate his examination," made his own legal objections, and usually provided intentionally unhelpful answers when he did answer, all of which was frequently delivered with "a gleeful smirk" at the camera.  (Personally, I think smirking alone should be actionable, let alone doing it gleefully.)

Wider's counsel took a shot at defending this conduct.  Among other things, counsel argued that it was justified because Wider was just reacting to "provocative and accusatory" questions.  "This argument is simply astonishing," said the judge, pointing to this exchange as an example:

Q.  This is your loan file.  What do Mr. and Mrs. Fitzgerald do for a living?
A.  I don't know.  Open it up and find it.
Q.  Look at your loan file and tell me.
A.  Open it up and find it.  I'm not your [expletive] [expletive]. . . . [S]hut the [expletive] up. . . You want me to look at something, you get the document out.  Earn your [expletive] money [expletive].  Isn't the law wonderful?  Better get used to it.  You'll retire when I'm done.

The court also criticized the attorney who represented Wider at the deposition, for failing to intervene or suggest an adjournment, and for actually tending to endorse Wider's conduct by "chuckling" at it and daring opposing counsel to file a motion to compel.

Which he did, of course.  Wider and the attorney were sanctioned and ordered to pay $29,322.61, for which they are jointly and severally liable.  As the WSJ calculated, that is approximately $367 per F-word or variant thereof.

Link: Law Blog - WSJ.com

Practice Tip: Probably Okay to End Deposition Early if Other Side Brings a Gun

On February 12, an attorney representing a man suing NFL running back Reggie Bush said he and his client chose to end a deposition early after noticing that the other side was armed.

"I knew they weren't going to like what they were going to hear, but I never thought they'd bring a gun," said Brian Watkins, an attorney for sports marketer Lloyd Lake.  Lake is apparently suing to recover $300,000 in payments and gifts that he gave Bush while Bush was at USC.  (The fact that these gifts were illegal may be a bit of an obstacle to recovering them.)

The report did not say who was being deposed, but it wasn't Bush, who is scheduled for February 25.  But it wasn't the deponent who had the gun anyway -- it was the bodyguard for Bush's attorney.  The attorney, David Cornwell, claimed later that he felt he needed a guard because Lake, who has a criminal background, has allegedly threatened him and Bush before.  Cornwell said the bodyguard had a permit to carry a concealed weapon, but Watkins said he didn't keep it concealed.

"He made sure we saw it," Watkins said.  Watkins' client said the bodyguard flashed the gun at him in the lobby, and that he opened his jacket later during the deposition.  When Watkins objected, Cornwell agreed to have the bodyguard sit outside the deposition room.  "So then," Watkins said, "he was sitting eight to 10 feet away from Lloyd, outside a glass door with his arms folded, staring in at my client."

Outrageous, Watkins called it twice.  "It's outrageous that he shows up strapped for a deposition," he said.  "That's outrageous conduct in the lawyer world.  Come on, we're lawyers.  I don't threaten people [with guns], I sue them."  Watkins suggested that the handgun was evidence that Bush has a weak case.  "They know the day of reckoning is coming," he said.  "They are panicking."

Cornwell, who has represented many other sports figures including dog lover Michael Vick, did not sound panicky.  Given Lake's background and the alleged threats, he said, "we were advised to take appropriate security precautions when in Lake's presence."  He dismissed the intimidation claims as unprofessional.  "This lawsuit stuff is for grown folks.  Obviously, this crew ain't ready."

The deposition was held at the San Diego office of grown folks Pillsbury Winthrop Shaw Pittman, though Pillsbury said none of its crew was present (it was just hosting).  In a statement, the firm also emphasized that it has a "zero-tolerance" policy for firearms at a deposition.

Link:  AP via NBC Sports
Link:  USA Today

"Follow the Chicken"

Q:  Do you have a separate business that you have
     incorporated . . . or is this something you do
     just in your own name?

A.  Sir, I had a vision back when I was a child that
     nobody else in this world could recognize but myself.

     I know where Osama bin Laden is today.
     I know the cure for SARS today.  I know many, many
     things in this world that other people don't recognize
     and don't understand and don't know.

     Simply because I follow the chicken.

From a classic deposition transcript that I'm surprised to see I haven't posted yet.  To learn more about following the chicken, follow the link.

Link: Pittman v. Dykes Timber Co. (Simpson County, Miss., May 28, 2003) (transcript excerpt)

Order Directs Counsel Not to Mudsling, Fingerpoint

On Tuesday, Judge Davis of the Northern District of Florida entered an order that suggested a slight frustration with discovery disputes that may result merely from a lack of civility between counsel.  Put another way, he is %@#*ing sick of the "now all too common, but absolutely intolerable, take-no-prisoners, scorched earth arrogance exhibited by many present day self-styled 'litigators.'"

Somewhere, there is a partner backing slowly and quietly out of a courtroom, just out of visual range of an associate still standing at counsel table.

In the judge's opinion, "truly justiciable" good-faith discovery disputes are very rare.  Given his suspicion that this was not one of those, but rather the garden-variety type, he established some very specific procedures to govern its resolution.  Sadly, this did not include a rock-paper-scissors match between counsel, as a judge in the Middle District ordered last year, but lead counsel do have to meet personally if necessary according to a specific schedule, and the non-prevailing attorney will likely be the one to pay any costs if the court is actually forced to rule on the dispute.

Finally, the judge concluded with a list of things to cut out:

[C]ounsel are advised that in my thirty-three years as a civil trial lawyer and judge I have seen it all and have heard it all. . . . Consequently, I will not consider half-baked arguments, lame excuses, delays caused by the client, mud slinging, passing the buck, pointing fingers, blaming support staff, or particularly, lack of time.

Also no fishing expeditions, unlimited document requests, usual boilerplate, totally unsupported claims, or arguments that a "common English word is 'vague' or 'overbroad.'"

Boy, if that became common practice, it would probably leave a bunch of lawyers standing around wondering what to do.  I think we actually have billing codes for most of those categories.

Link:  Design-Build Concepts, Inc. v. Jenkins Brick Co. (N.D. Fla. June 26, 2007)