But First District, Div. 5 Rules That Sanctions For Expenses Incurred Cannot Include Expenses of Taking Another Deposition.
In a proposed class action, defendant deposed one of the plaintiffs. Plaintiff’s counsel, J. David Franklin, wrote on a legal pad and showed it to his client, the deponent. Counsel also instructed the deponent not to answer questions related to her standing to bring the action, and refused to permit defense counsel to question the deponent about the notes on the legal bad. After the deposition, Mr. Franklin threw away the notes. Defendants moved for sanctions against plaintiffs and Mr. Franklin.
The trial court accepted the defense version of what occurred at the deposition, explaining: “putting a note in front of a witness during a deposition and then telling the witness not to say what it is, it certainly has the objective appearance of being improper coaching.” The trial court imposed sanctions in the amount of $7,500 pursuant to CCP section 2030.030. (Note: An order directing payment of monetary sanctions by a party or an attorney may be appealed if the amount exceeds $5,000). Plaintiffs appealed. Tucker v. Pacific Bell Mobile Services, A126077 (1st Dist., Div. 5 July 29, 2010) (certified for publication).
Above: Children playing in sandbox. Tulare migrant labor camp. March 1940. Photographer: Arthur Rothstein, 1915-1985. Library of Congress.
The Court of Appeal reversed insofar as the award of sanctions was for costs related to the taking of future depositions. But plaintiff’s counsel is not out of the clear: “On remand, the court shall recalculate the amount of sanctions awarded to defendants and shall limit those sanctions to ‘reasonable expenses . . . incurred’ by defendants as a result of Franklin’s abuse of the discovery process. . . . If applicable, the court shall report the sanctions to the State Bar . . . and Franklin shall report the sanctions to the State Bar . . . “ Justice Jones authored the 3-0 opinion.
Comment: Defense counsel was pretty relentless about papering his position. Two hours after the deposition ended, he emailed and faxed Mr. Franklin a letter demanding he “maintain and not otherwise alter or destroy the notepad you had in today’s deposition.” That was a helpful tactic with a discovery dispute looming. Defense counsel objected to the coaching, asked for a stipulation to the appointment of a discovery referee, requested dismissal of the deponent as a class representative, and demanded reimbursement for the costs and fees incurred in the deposition. Mr. Franklin responded, “As General McAuliffe stated to the Germans at Bastogne in December, 1944: ‘Nuts!’”. A colorful reply, though perhaps ill-advised in a discovery dispute. Though the 4th Armored Division did not arrive to reinforce the attorney’s position, at least like Brigadier General McAuliffe, Mr. Franklin did avoid getting annihilated. Each party bore its own costs on appeal.