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
