Sanctions Awarded for "Train Wreck of a Deposition" Where Witness Was Evasive and Counsel Made Inappropriate Objections

September 4, 2014

In this patent infringement action between MAG Aerospace Industries, Inc. ("MAG") and B/E Aerospace, Inc. ("B/E"), MAG filed an ex parte motion as a result of conduct during a deposition. The court began its analysis of the motion by reminding the parties that "[a] deposition is a judicial proceeding that should be conducted with the solemnity and decorum befitting its importance. Lawyers participating in depositions should comport themselves in a professional and dignified manner."

The court went on to state that "[w]hen lawyers behave otherwise, it reflects poorly on the entire judicial process. The purpose of a deposition is for a witness to provide testimony under oath. The testimony may or may not be admissible at trial; nonetheless, the opposing party is entitled to ascertain the witness's knowledge, as imperfect and imprecise as that knowledge may be."

With that introduction, the court found that the deposition transcript revealed "troublesome behavior." "The Court has read the entire deposition transcript and can only conclude that both the witness and his counsel do not fully grasp their legal obligations when participating in judicial fact finding procedures. For his part, the witness appears to have been highly evasive and unwilling to simply answer a question. It strains credulity to take the witness's expressed inability to understand common terms such as "what," "sales," "marketing," "does," "have," "use," "offer," "involvement," "which," "communication," etc. at face value. The witness started the train wreck of a deposition by asking counsel "to clarify" what he meant by such obvious words as "responsibilities" and "educational background."

The court also found fault with counsel's objections. "Counsel soon hopped on the bandwagon and began interposing inappropriate objections that perfectly clear (albeit broad) questions were "vague." Like a tag team, the witness would respond by asking plaintiff's counsel to "be more precise." Counsel stepped up the attempt to disrupt any worthwhile examination by continually interposing inappropriate objections, "cluing" the witness to ask the questions to be rephrased, and wasting everyone's time trying to engage plaintiff's counsel in banter. The witness responded in kind, by essentially refusing to answer any question if he was not "100% sure" of the answer. Rather than testify as to what he did know, the witness kept telling plaintiff's counsel to ask someone who might know more. Both counsel and the witness seemed to confuse a broad question with one that need not be answered. The end result was essentially a filibuster of an entire day of "testimony." The witness and his counsel may have taken some temporary pleasure in frustrating plaintiff's counsel's ability to obtain any information from the witness, but the judicial process and the public's perception of it suffers."

The court also did not appreciate one particular statement made by counsel during the deposition. "The witness's counsel seems particularly oblivious to the realities of modern federal court litigation. He should understand that, contrary to his gratuitous statement on the record, the Court does not have "the whole day" to deal with his antics. On the contrary, numerous litigants with serious questions must await resolution of their legal issues while the Court wastes its time dealing with lawyers' behavioral problems."

As a result, the court ordered several sanctions, including, among others: (1) the defendant was ordered to produce a 30(b)(6) witness; (2) defense counsel was precluded from asserting objections, such as "vague, lack foundation, calls for hearsay, etc."; (3) defense counsel was precluded from interrupting a question posed by plaintiff's counsel; and (4) the defendant was ordered to reimburse plaintiff for the attorney fees and court reporter fees incurred for the deposition and attorney fees incurred in preparation of the ex parte motion.

MAG Aerospace Industries, Inc. v. B/E Aerospace, Inc., Case No. CV 13-6089 SJO (FFMx) (C.D. Cal. Aug. 22, 2014)

The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.