0 Comments Published on November 25th, 2014 by Lauri Donahue
In the case of MAG Aerospace Industries Inc. v. B/E Aerospace Inc., MAG sued B/E in 2013 alleging infringement of MAG’s patents for vacuum toilet bowls used on airplanes.
In August, MAG deposed B/E’s sales and marketing director, Jean-Marc Monteiro, for seven hours.
According to the Magistrate Judge,
The witness started the train wreck of a deposition by asking counsel “to clarify” what he meant by such obvious words as “responsibilities” and “educational background.” Counsel soon hopped on the bandwagon and began interposing inappropriate objections that perfectly clear (albeit broad) questions were “vague.”
According to the judge, the witness also claimed not to understand terms such as “what,” “sales,” “marketing,” “does,” “have,” “use,” “offer,” “involvement,” “which,” and “communication.”
In addition, said the judge,
Rather than testify as to what he did know, the witness kept telling plaintiff’s counsel to ask someone who might know more. Both counsel and the witness seemed to confuse a broad question with one that need not be answered. The end result was essentially a filibuster of an entire day of “testimony.”
The judge granted the plaintiff’s ex parte motion and ordered the following:
- The defendant was to produce a witness who would actually answer the deposition questions.
- The defense counsel was not to assert any objection other than one based on privilege, assumptions of disputed facts, or mischaracterization of the record.
- Defense counsel was not to interrupt a question other than to assert a permitted objection.
- Counsel for both sides were not to engage in any “banter” with each other.
- The defendant was to reimburse the plaintiff for the attorney fees and court reporter fees incurred during the “train wreck” deposition and for the preparation of the ex parte motion.
The judge noted that when lawyers behave badly in depositions, it “reflects poorly on the entire judicial process”:
A deposition is a judicial proceeding that should be conducted with the solemnity and decorum befitting its importance. Lawyers participating in depositions should comport themselves in a professional and dignified manner.
The judge concluded:
The witness and his counsel may have taken some temporary pleasure in frustrating plaintiff’s counsel’s ability to obtain any information from the witness, but the judicial process and the public’s perception of it suffers.
Clearly, the “temporary pleasure” of frustrating another attorney isn’t worth the terrible client relations fallout when a client gets stuck with the other side’s legal bills (even if the sanctioned attorney’s own firm ends up picking up the tab).
Attorneys should be more aware of the risk of sanctions when they decide to be “difficult” in depositions.
Lauri is a Harvard Law School graduate and a member of the California Bar with more than 20 years of experience helping technology and entertainment companies with transactions, including IP licensing, and litigation.