Ain't Misbehavin?
Depositions. Place where zealous advocacy and misconduct are frequent companions. Or does it depend on where you are sitting? On July 29, the First District affirmed in part and reversed in part an appeal from discovery sanctions. Translation, somebody was "misbehavin."
The case is Tucker v. Pacific Bell Mobile Services, 2010 Cal.App. LEXIS 1255. After passing the deponent notes to read during the deposition, and instructing the deponent not to answer questions about the notes, on-the-record colloquies included the following "highlight."
Deposing Lawyer: In the number of years I've been doing this, I have never had a witness -- I have never even seen a suggestion of a witness reviewing, while a question is being framed, material written by counsel for that witness.
Defending Lawyer: I suggest maybe you need more seasoning. Maybe you haven't been a lawyer long enough.
After further contentious exchanges about defending lawyer's conduct, defending lawyer instructed his client not to answer questions about the allegations in the complaint, on the grounds that they called for a legal conclusion or concerned the merits of plaintiffs' claims! Objection, allowing my client to answer may provide evidence! Hmnn...
After the smoke cleared, deposing lawyer asked defending lawyer to stipulate to a discovery referee and other conditions. Defending lawyer's response?
"As General McAuliffe stated to the Germans at Bastogne in December, 1944: 'Nuts!'"
I guess that's the "all's fair in love and war" interpretation of the Code of Civil Procedure. Deposing counsel moved for sanctions under Code of Civil Procedure section 2030.030. The trial court awarded sanctions of $7,500 which included costs for "further deposing the plaintiff."
So what does Tucker stand for? First, an order awarding sanctions greater than $5,000 is directly appealable. (Code Civ. Proc. section 904.1, subd. (a) (12).) Second, discovery orders are generally reviewed for abuse of discretion. Third, a party does not have to move for an order compelling deposition responses (under section 2025.480) prior to moving for sanctions under section 2023.030. Fourth, the operative phrase in section 2023.030 subdivision (a) is "incurred by anyone." Therefore, trial courts can award sanctions for "reasonable expenses . . . incurred" by a party as the result of discovery abuse, but not for "costs related to the taking of a future deposition." Tucker remanded the matter to the trial court to recalculate the amount of sanctions limited to expenses actually incurred.
Tucker tells the party that was the victim of discovery abuse that some of the cost of that abuse will be absorbed by the victim. After all, the deposition do-over is caused by the misconduct. I suppose clever lawyers will find a way to recoup those costs, don't you?
