Edwards v. Wilkie, Secretary of the Department of Veterans Affairs

Background

Dollareatha Edwards brought an employment discrimination action against Robert Wilkie, Secretary of the Department of Veterans Affairs. She alleged, among other things, that Jodie Jackson and Christopher Walls discriminated against her because of disability and gender, and that Jackson, Walls, and others created a hostile work environment involving retaliation and harassment that forced her to retire on disability.

After several extensions, fact discovery was extended only to complete the continued deposition of Jodie Jackson and the deposition of Christopher Walls. Those depositions were completed on May 15 and 16, 2019. Edwards then moved for sanctions under Federal Rule of Civil Procedure 30 and 28 U.S.C. § 1927. She sought to reopen discovery for the limited purpose of serving requests for admissions and conducting narrow searches for electronically stored information.

Edwards’s Arguments

Edwards argued that defense counsel’s frequent objections, discussions on the record, alleged witness coaching, and other conduct prevented a fair deposition. She pointed to the number of objections during both depositions, objections concerning Walls’s asthma, and a break during questioning about a reprimand so Walls could consult counsel about a privilege issue. She also argued that monetary sanctions would not be sufficiently punitive because the defense attorneys worked for the federal government.

Legal Standards

Rule 30(c)(2) requires deposition objections to be concise, nonargumentative, and nonsuggestive. It generally allows an attorney to instruct a witness not to answer only to preserve a privilege, enforce a court-ordered limitation, or present a motion concerning the deposition. Rule 30(d)(2) permits sanctions for conduct that impedes, delays, or frustrates a fair examination, and the decision to impose those sanctions is within the court’s discretion.

Sanctions under 28 U.S.C. § 1927 require a clear showing of bad faith. The opinion explains that such sanctions may be appropriate when an attorney’s conduct essentially destroys a deposition or is so lacking in merit that it must have been undertaken for an improper purpose, such as delay.

Analysis

The court reviewed both deposition transcripts and found that the objections, although numerous, were not inappropriate or unwarranted. Most were stated simply as “objection” or “objection to form,” did not involve extended argument, and did not prevent the witnesses from answering. Defense counsel instructed Walls not to answer only once.

The court rejected Edwards’s argument that the number of objections alone justified sanctions. It explained that context matters because attorneys defending depositions have an obligation to make timely objections. Sanctioning counsel based only on the number of objections could encourage unclear or objectionable questions.

During Jackson’s deposition, the disputed exchanges generally followed questions that repeated allegations from the complaint, prefaced questions with statements, or asked about testimony from an earlier deposition session. The court found that these questions were properly subject to form objections and that Jackson was able to answer them.

During Walls’s deposition, the court found that Edwards was able to explore the issues involving Walls’s asthma and his reprimand. Although counsel paused the deposition while a question was pending, counsel identified the privilege concern as the reason for the break, and Walls later answered at least 20 questions about the reprimand. The court also noted that Walls answered at least 19 distinct questions about his asthma history.

Disposition

The court found that Edwards completed both depositions and did not identify any material area that defense counsel prevented her from exploring. It further found that the objections and exchanges were not made in bad faith and that the witnesses answered the questions, including when the questions were unclear or counsel disputed their relevance. Judge Ona T. Wang therefore denied Edwards’s motion for sanctions. The opinion did not grant the requested reopening of discovery.