Published on:

Repeated Coaching at Deposition Leads to Monetary and Issue Sanctions

In this patent infringement action, Plaintiffs Brian Horowitz and Creative Outdoor Distributors USA Inc. (the “Plaintiffs”) filed a motion for sanctions against Defendant Yishun Chen (“Yishun”) and his counsel, David Lin (“Lin”) for alleged misconduct that took place during the depositions of defendants. The court had previously granted a motion to compel a further deposition, noting “that Lin and Yishun left the room while questions were pending, Lin improperly instructed Yishun not to answer questions, Lin made frequent speaking objections to coach Yishun, and that Lin was disrespectful and personally attacked opposing counsel.”

The court ordered the video transcripts filed so that it could review the depositions for itself. After reviewing the transcripts, the court determined that there were several instances of inappropriate behavior by the Defendants and their counsel. For example, the court explained that:

The court also found that an off-the-record conference between the attorney and Yishun was also troubling. The Court explained as follows: “Gibby asked Yishun when he gave Defendant Kevin Xia the right to protect his patents, to which Yishun replied, “2016, the end of the year, or perhaps it was at the beginning of 2015 when I first started working with him.” Gibby asked, “So, either the end of 2015 or the beginning of 2016,” prompting Lin to object, “I don’t think that’s what he said. I think he said the end of the year, 2016,” and Yishun to answer, “That’s what I remember.” Gibby then asked, “When you gave Kevin the right to protect your patents at the end of 2015 or the beginning of 2016, did you put the right for him to do that in writing at that time?” Lin objected, “I think that misstates his prior testimony. His prior testimony, I believe he said,” causing Gibby to protest that Lin was coaching.

Lin quickly requested a five-minute break. Upon return, Yishun stated, “Earlier when I was talking about the time frame with Kevin, I believe that I might have not been very accurate when I said it. It actually should be at the end of 2016 and at the beginning of 2017. Of this, I don’t remember that clearly, so I went and thought about it a little bit, and I believe that’s the case.” Gibby asked Yishun if he had spoken to Lin during the break, leading Lin to interject, “I’m going to represent on the record that we contacted [Zhaosheng] during the break to confirm this timing for when these discussions took place with Kevin Xia and confirmed that it was the end of 2016, beginning of 2017. Obviously, Mr. Chen is elderly and his memory is not as good, and we wanted to make sure that the record was clarified to reflect the correct time of these events.”

Given the conduct recited above, the court found that “[i]t is hard to square how Yishun suddenly remembered the correct timeline after Lin’s assistant told him he could change his testimony (but not what testimony to change) only minutes after Lin spoke to Zhaosheng on the phone and got clarification about the very same testimony. It should not have taken several minutes of questions before Lin and Yishun fully admitted what went down. At best, Lin and Yishun engaged in an improper off-the-record conference and were less than fully forthcoming in the details of what transpired, with Lin eventually coaching Yishun to admit that someone in Lin’s office contacted him. At worst, Lin and Yishun intentionally tried to cover-up the fact that Lin’s assistant (or Zhaosheng himself) relayed to Yishun specific information regarding Kevin Xia. Either scenario is a bad look and one that the Court has already sanctioned Lin for.”

As a result, the court “concludes that Lin’s conduct, including instructions not to answer questions, off-the-record conferences, and speaking objections and coaching, was improper and thus sanctionable.”

Accordingly, the court awarded monetary sanctions in the form of attorney’s fees and recommended that “the District Judge give a jury instruction at any trial in this matter consistent with language identified above, and permit Plaintiffs to play the relevant portions of Yishun’s deposition video to impeach any testimony about when Kevin Xia was granted patent-enforcement rights.”

Horowitz v. Chen, Case No. SA CV 17-00432-AG (C.D. Cal. Aug. 22, 2019)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or