Monday, August 24, 2015

No Sanctions for Clear Discovery Violation

Discovery: an inevitable part of the litigation process, and, if left to fester, has the potential to cause bitter contention and discord between parties.  Most often, discovery disputes are resolved by way of simple communication and an agreement to extend professional courtesy among lawyers. However, that is not always the case.  The matter of Osborne v. Mountain Empire Operations, L.L.C., et al., 2015 U.S. Dist. LEXIS 76732 (D. Va. 2015)  sheds light on legally appropriate conduct during the deposition phase of discovery, while reminding us that, despite agreements between counsel, the court ultimately has the final word in motions filed related to discovery disputes.

Osborne began as a routine, diversity jurisdiction personal injury case in the United States District Court in the Western District of Virginia.  Two months following the deposition of Defendant’s corporate designee, Plaintiff filed a motion for sanctions alleging a discovery violation.  As noted in the briefs and arguments on the Motion that followed, Plaintiff argued that the Defendant’s actions while defending the corporate designee’s deposition were in violation of the Rules.  Specifically, the Defendant failed to produce an adequately prepared corporate witness and further frustrated the purpose of the deposition by coaching the witness and directing her not to answer certain questions.  The latter allegation may be viewed as a routine phase during depositions, or at a minimum, staunch advocacy; however, the Plaintiff contended that the direction was without proper cause, thus making it actionable.

The motion was briefed and argued before Judge James Jones.  While the case was under advisement and following mediation before a magistrate judge, the parties announced a settlement of the case, which included an agreement that the Plaintiff will withdraw the pending Motion for Sanctions.  

Not so fast!

While many judges may applaud a resolution to a case and pending discovery dispute, Judge Jones identified his independent obligation to enforce the Federal Rules of Civil Procedure, despite the parties’ agreement.   In short, Judge Jones found that the rules were violated as claimed, but sanctions were not warranted.

Judge Jones outlined two reasons to support his ruling on Defendant’s conduct.  First, the deposition’s purpose was frustrated by the inadequate preparation of Defendant’s corporate designee.  Federal Rule of Civil Procedure 30(b)(6) states that corporate representatives in a deposition must testify about information known or reasonably available to the organization.   The corporate designee did not testify as required.  During her deposition, she responded approximately 163 times that she did not have personal knowledge and could not answer the Plaintiff’s questions.  Defense counsel argued that the witness was supplied by her client, and not chosen independently by her.  Notwithstanding this argument, the Court found that Defense counsel had an independent obligation to make sure that the rules were satisfied by preparing the witness for her deposition.  In this case, such preparation was not satisfied as Defense counsel acknowledged that she instructed the witness not to speak with other important witnesses and to simply review various documents.  This proved to be faulty advice, as the witness did not offer testimony or present in a manner that satisfied the Federal Rules.

Judge Jones found that Defense counsel also violated the rules by instructing the witness not to answer certain questions.  Such instructions are a routine part of any standard deposition, and may be made for various legal reasons, such as when necessary to preserve privilege. However, no viable reason seemed to exist in Osborne.  Judge Jones further described the Defendant’s comments after questions as done in ways that could have suggested answers by the witness.  This is improper.

Judge Jones recognized and formally disapproved of Defendant’s violation of the rules; however, he found that sanctions were not warranted on Defendant or its counsel.  Plaintiff’s delayed filing of the Motion for Sanctions and timing of filing the Motion shortly before trial precluded any effective remedial sanctions.  Further, Plaintiff did not appear to be prejudiced by Defense counsel’s conduct.  As such, Judge Jones denied the Motion for Sanctions.

Judge James Jones provides a great reminder of the importance of proper discovery, preparation and timely Motions practice.   Fortunately, the attorneys at RSR&M recognize the importance of presenting appropriately prepared witnesses for all depositions and will defend depositions only as authorized under the Federal Rules.

Contributed by Tara A. Barnes

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