Kasparov v. Ambit Tex., LLC

YURI (URI) KASPAROV, Plaintiff, v. AMBIT TEXAS, LLC and STEVEN THOMPSON, Defendants.

No. 3:16-cv-3206-G-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

October 26, 2017

MEMORANDUM OPINION AND ORDER

Defendants Ambit Texas, LLC and Robert Stephen Thompson have filed a Motion to Compel Plaintiff to Reappear for Deposition and for Sanctions Based on Plaintiff's Obstructive Conduct During His Deposition, see Dkt. No. 170 (the "MTC"), moving under Federal Rules of Civil Procedure 30 and 37 to compel the renewed deposition of Plaintiff Yuri (Uri) Kasparov because of Mr. Kasparov's and his counsel's obstructive conduct during Mr. Kasparov's deposition.

All discovery matters in this case have been referred to the undersigned United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from Senior United States District Judge A. Joe Fish. See Dkt. No. 134.

In accordance with the Court's December 16, 2016 Standing Order on Discovery [Dkt. No. 138], Defendants and Mr. Kasparov have filed a Joint Status Report on Defendants' Motion to Compel Plaintiff to Reappear for Deposition and for Sanctions Based on Plaintiff's Obstructive Conduct During his Deposition. See Dkt. No. 172. Based on the parties' filing in compliance with the Court's Standing Order, although the Court previously ordered the MTC to be unfiled, see Dkt. No. 171, the Court will now address the MTC as presented through the Joint Status Report.

For the reasons and to the extent explained below, the Court GRANTS in part and DENIES in part Defendants' Motion to Compel Plaintiff to Reappear for Deposition and for Sanctions Based on Plaintiff's Obstructive Conduct During His Deposition [Dkt. No. 170].

Background

Defendants deposed Mr. Kasparov in Jacksonville, Florida on July 13, 2017. According to Defendants, Mr. Kasparov "engaged in a systematic effort to deprive Defendants of the ability to use Plaintiff's deposition testimony, and Plaintiff's conduct was aggravated by his counsel's repeated use of improper 'form' objections." Dkt. No. 172 at 4. Defendants more fully explain that they

were deprived of a full and fair opportunity to depose Plaintiff in this case based on Plaintiff's and his counsel's conduct during Plaintiff's deposition. As will be shown below and in the attached exhibits, Plaintiff engaged in an intentional, systematic effort to deprive Defendants of the ability to use the deposition by refusing to give responsive answers uncluttered by Plaintiff's own non-responsive, volunteered, self-serving narrative of his own views of the case. Throughout the entire deposition, defense counsel was forced to ask questions as many as seven times before obtaining a responsive answer. On many such occasions, Plaintiff never gave a responsive answer to the question asked or, if he did, he accompanied the response with non-responsive, self-serving speeches. Plaintiff's counsel impeded the deposition and exacerbated Plaintiff's misconduct by repeatedly making objections to the "form" of the question in response to clearly proper questions and, on at least twenty occasions, by instructing Plaintiff not to answer permissible questions.

Id. at 3-4.

Defendants contend that, "[b]y refusing to give responsive answers, repeatedly objecting to proper questions, and instructing Plaintiff not to answer allowable questions, both Plaintiff and his counsel deprived Defendants of their ability to fully and fairly take Plaintiff's deposition." Id. at 4. "Under Federal Rules of Civil Procedure 30 and 37, Defendants respectfully request that the Court order Plaintiff to reappear for a full deposition in Dallas, Texas and pay for the costs of the court reporter and videographer for his first deposition" in the amount of $5,424.00 and "further request that the Court order Plaintiff to provide responsive, non-evasive answers to questions at his renewed deposition and warn Plaintiff that any further obstructive conduct will result in dismissal of his case with prejudice." Id.; see also id. at 31.

Mr. Kasparov responds that he "conducted himself very admirably at his deposition," and,

[i]n the face of tremendous stress applied to him by the Defendant's counsel in seven hours of rigorous and extremely aggressive and contentious cross-examination encompassed in the 10 hour day at the site of the deposition, the circumstances facing Mr. Kasparov from the perspective of his ailing physical and mental health, and the pressure of his federal lawsuit weighing upon his shoulders, Mr. Kasparov never lost his temper with Defendants' counsel or his patience with the deposition process itself. In the medical records filed under seal, at AEO bates stamped P-00519 his doctor's notes of their meeting held on July 10, 2017, just three days before Mr. Kasparov's deposition on July 13, 2017, describes a significant problem with his speech pattern as a part of his medical condition.

Since the deposition on July 13, 2017 additional, seemingly insurmountable obstacles now face Mr. Kasparov, who has been the caretaker for his 89 year old mother for decades and who is and has been for several weeks in the Baptist Hospital in Jacksonville, Florida, placed on a ventilator for life support weeks ago, and unresponsive to the point that her doctors have recommended he authorize the removal of the ventilator as nothing further can be done for her. As a consequence, Mr.Kasparov is unable to travel away from Jacksonville and has precious little time to spend away from his mother's bedside in the Jacksonville hospital.

Id. at 31-32 (footnotes omitted).

More specifically, Mr. Kasparov asserts that "Defendants' counsel improperly objected to Plaintiff's counsel's instruction to his client on two occasions to refuse to answer on the grounds of harassing and hostile repetition"; "Plaintiff's counsel did not obstruct the counsel's conduct of the deposition"; "Plaintiff's counsel's use of the 'objection to form' in the deposition was proper"; "[n]o witness coaching took place at Mr. Kasparov's deposition"; and that, "[o]f the '21' instructions not to answer that Defendants' counsel now objects to, the number should be sixteen instructions not to answer which requested privileged information under the laws of Florida marital privilege, as two (not three) were concerning hostile and harassing repetitious questioning as Plaintiff's counsel has discussed above, and one was simply an objection to form without any instruction not to answer and two others were answered by Mr. Kasparov before the instruction was given to him." Id. at 33-50.

Mr. Kasparov contends that he "and his attorney were not obstructive, nor did Plaintiff conduct himself at any time during his deposition in a hostile or disrespectful manner, and always did his best to respond fully to the questions that were put to him by Defendants' counsel." Id. at 52. But, he argues, "[i]f the Court, after weighing the arguments and authorities made and cited by both sides in this lawsuit, decides violations of the discovery rules did occur, Plaintiff requests that the Court consider denying sanctions against Plaintiff for those violations which the Court believesoccurred and limiting any second deposition to a deposition by not more than ten (10) written cross examination questions under Rule 31, FRCP, with no questions which were already asked at the first deposition, and no right to re-cross examination by follow up written questions." Id. at 52-53 (footnote omitted).

Legal Standards

Federal Rule of Civil Procedure 30 governs the conduct or counsel, parties, and deponents in connection with a party's deposition as an initial matter, and Rule 30(c)(2) governs objections to deposition questions and when a party must answer. See FED. R. CIV. P. 30(c)(2). "An objection at the time of the examination - whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition - must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection." Id. "An objection must be stated concisely in a nonargumentative and nonsuggestive manner." Id. "An objection to a deponent's competence - or to the competence, relevance, or materiality of testimony - is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time." FED. R. CIV. P. 32(d)(3)(A). "An objection to an error or irregularity at an oral examination is waived if: (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition." FED. R. CIV. P. 32(d)(3)(B).

And Rule 30(c)(2) provides only three situations in which a deponent mayproperly be instructed not to answer a question - "only when necessary" (1) to preserve a privilege, (2) to enforce a limitation previously ordered by a court, or (3) to present a motion under Federal Rule of Civil Procedure 30(d)(3) to terminate or limit the deposition on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. Id. ("A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)."). "'Directions to a deponent not to answer a question can be even more disruptive than objections.'" Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 591 n.7 (S.D. Tex. 2011) (quoting FED. R. CIV. P. 30(d) 1993 Advisory Committee's Note).

"Because the plain language of Rule 30 is rather clear on what types of objections counsel may make and when counsel may instruct a deponent not to answer a question, courts have generally concluded that it is improper to instruct a...