Silver v. BA Sports Nutrition, LLC

Background

The defendant moved for sanctions under Federal Rule of Civil Procedure 30(d)(2), which permits a court to award fees against a person who impedes, delays, or frustrates a fair deposition. The motion followed Marc Silver’s December 8, 2020 deposition. During the three-hour deposition, plaintiffs’ counsel, Ms. Maia Kats, made more than 200 objections, including numerous speaking objections. Defense counsel, Mr. Matthew Borden, eventually suspended the deposition because of her conduct.

The defendant requested attorney fees and costs for taking Silver’s deposition and filing the sanctions motion, an order requiring Silver to appear for another deposition with plaintiffs paying the related fees and costs, and a jury instruction stating that plaintiffs’ lawyers coached and interfered with Silver’s testimony and that the jury could draw an adverse inference from that conduct.

Parties’ Positions

The defendant argued that Ms. Kats improperly coached Silver and interfered with the deposition, allegedly affecting his testimony on nearly all issues in the case. Ms. Kats responded that Mr. Borden’s questions were repetitive and leading and that she objected more forcefully because Silver appeared confused and frustrated.

Court’s Analysis

After reviewing the full deposition transcript and video, the court rejected plaintiffs’ description of the events. Although it found that some of Mr. Borden’s questions were inartfully phrased, it found Ms. Kats’s frequent objections exceedingly disruptive. The court identified multiple instances in which she used speaking objections, instructed Silver how to answer, prevented defense counsel from completing questions, or told Silver not to answer. The court also found that the contentious interactions, frequently initiated by Ms. Kats, contributed to Silver’s visible frustration.

The court stated that if counsel believed Silver was confused, counsel should have requested a break and asked him how he was feeling rather than increasing the objections and obstructing the deposition. The court found sanctions appropriate under Rule 30(d)(2), which gives courts discretion to award costs for retaking a deposition or seeking a further deposition.

Ruling

The motion for sanctions was GRANTED in part and DENIED in part. The court ordered plaintiffs’ counsel to pay the defendant’s attorney fees and court-reporter fees incurred in taking Silver’s December 8, 2020 deposition, with payment due no later than March 8, 2021. It also ordered Silver to appear for a second deposition from the beginning. At that deposition and any further depositions in the case, objections would be reserved except for privilege objections.

The court found the defendant’s other requested sanctions were not warranted, including the requested jury instruction and adverse-inference instruction. The court also warned that, if further discovery disputes occurred, it would appoint a private special master to oversee discovery, with the costs split between the parties. The court additionally noted that defense counsel appeared not to have followed a Northern District guideline or local rule concerning consultation about deposition dates.