Fourth District, Division 1 Did Vacate “Future Deposition” Sanctions.
The next post is a very pragmatic one for litigators involved in discovery battles. Cutting to the chase, an attorney was hit with substantial fees (sanctions) for interposing over 300 objections during the course of some depositions. The Fourth District, Division 1 affirmed, although they did “throw out” $10,000 in future anticipated deposition costs, because the pertinent discovery statutes only encompassed “incurred” expenses.
In Hallam v. Johnson (Butler), Case No. D054852 (4th Dist., Div. 1 Dec. 15, 2009) (unpublished), a discovery referee recommended that an attorney should be sanctioned $35,607.03 in fees and costs (out of a requested $100,307.53, which was voluntarily reduced from an initial request of $112,243.52) for interposing meritless objections—over 300—at some depositions. Attorney appealed, and most of the award was sustained.
Attorney initially argued that “defending” a deposition was not equivalent to “employing” a discovery method for sanction purposes under the Discovery Act. Wrong, said the appellate panel, analogizing to the reasoning of Pueblo v. Superior Court, 158 Cal.App.4th 1242, 1248 (2008), which involved a supplemental discovery response dispute.
Attorney then argued that the discovery referee/trial court erred in specifying the specific discovery statute utilized as a basis for the sanctions award. Wrong again, said the Court of Appeal, citing to Ghanooni v. Super Shuttle, 20 Cal.App.4th 256, 261 (1993)—no such requirement exists in the discovery sanctions context.
Attorney next complained that the sanctions motion was untimely because it occurred past the date for a timely motion to compel. Wrong yet again, because a discovery sanctions motion can be brought later. (London v. Dri-Honing Corp., 117 Cal.App.4th 999, 1001 (2004).)
However, Attorney did get a reprieve because the appellate court reversed the $10,000 component of the discovery sanctions award for future deposition costs, finding that Code of Civil Procedure section 2023.030 only authorizes recoupment of sanctions for incurred expenses.
End result: appellate court reduced the sanctions award by $10,000, meaning that Attorney was still out $25,607.03 in sanctions. Moral of the story: Be careful how (and how often) you object during depositions!