A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.
Fed.R.Civ.P. 37(c) (West 1999). The exclusion of evidence is an automatic sanction and
is not dependent upon the prior filing of a motion under Rule 37(a).
See, e.g.,
Miksis v. Howard, 106 F.3d 754, 760 (7th Cir.1997) (" This sanction is automatic and mandatory unless the party can show the violation was either justified or harmless." ) (citations and quotations omitted). Furthermore, 37(c) also provides that
In addition to or in lieu of [the exclusionary] sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule and may include informing the jury of the failure to make the disclosure.
Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615.... All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections.
Fed.R.Civ.P. 30(c) (West 1999). Furthermore, Rule 30(d) explicitly provides that:
Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.
A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3).
In re Stratosphere Corp. Sec. Litig.,
Odone v. Croda Int'l PLC,
Damaj v. Farmers Ins. Co.,
see also,
Hall v. Clifton Precision,
The Advisory Committee Notes to the 1993 Amendments for Rules 30(c) and (d) state that they were " aimed at reducing the number of interruptions during depositions," and intended to rectify past experience where " [d]epositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.... [Furthermore] [d]irections to a deponent not to answer a question can be even more disruptive than objections." Fed.R.Civ.P. 30 1993 Advisory Committee Notes (West 1999). As the Damaj court noted, the purpose of depositions is to determine what the witness saw, heard, knew and thought " through a question and answer conversation between the deposing lawyer and the witness." See Damaj, 164 F.R.D. at 560. " Frequent and suggestive objections" can " completely frustrate that objective" and " obscure or alter the facts of the case and consequently frustrate the entire civil justice system's attempt to find the truth." Id.
Pursuant to Rule 30(d)(2), a court shall allow additional time for depositions " if needed for a fair examination of the deponent or if the deponent or another party impedes or delays the examination." Fed.R.Civ.P. 30(d)(2) (West 1999). " If the court finds that such an impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof." Id.
The court has reviewed attorney Mooney's conduct during the depositions of the defendants and their witnesses. The record before the court establishes that attorney Mooney's deposition conduct was in clear violation of Federal Rule of Civil Procedure 30. He repeatedly counseled witnesses not to answer questions on grounds not appropriate under Rule 30, see, e.g., James Kattar Dep. Vol. II at 4-21, 28-30, 31, 32, 33, 34, 36; Kevin Kattar Dep. Vol. IV at 19, 39, 40, 41, 42, 43, 53, 54, 76, 77, 78, 89, 91, 92, 100, 113; George T. Kattar Dep. Vol. IV at 32; George P. Kattar Dep. Vol. II, at 35, 36, 39, 40, 102, 105, 106, 107, 108, 115, 117, 121, 125, 126, 127, 128; made argumentative and/or suggestive objections, see, e.g., Phyllis Kattar Dep. Vol. I at 51-52, 69-71, 117; and abruptly interrupted depositions at unscheduled times, leaving the room with deponents, see, e.g., Kevin Kattar Dep. Vol. IV at 17; Phyllis Kattar Dep. Vol. I at 53-54; George T. Kattar Dep. Vol. IV at 39-40. This list of inappropriate conduct is by no means exclusive. Attorney Mooney persisted in this conduct even after opposing counsel cited the Federal Rules of Civil Procedure to him and provided him with persuasive case law interpreting the Rules. See, e.g., James Kattar Dep. Vol. II at 4-6. The court finds that such conduct on the part of attorney Mooney was unreasonable and in bad faith. The record reflects attorney Mooney's disdain for proper deposition procedure and an apparent intent to obstruct and frustrate the government's efforts to successfully elicit facts and testimony from witnesses.
A number of these questions were eventually answered despite the instruction.
The government moves for default judgment and seeks an award of litigation expenses including attorneys fees. As discussed above, however, the ultimate sanction of default would be inappropriate and unwarranted under the circumstances of this case. This is not a situation where the defendants should have to bear the ultimate sanction because of the conduct of their attorney. Other remedies reflecting a more measured response must be considered.
Attorney Mooney's conduct clearly impeded and delayed the government's deposition of witnesses and interfered with the search for the truth, which, after all, is the ultimate goal of both the discovery and trial process. Furthermore, the court finds it highly probable that attorney Mooney successfully frustrated the government's capacity to achieve a fair examination of the deponents. In crafting a remedy, the court is mindful of the truth seeking function of the civil justice system, the strong likelihood that attorney Mooney has successfully interfered with this function, and the importance of deterring such conduct in the future.
Therefore, the court finds that additional time is warranted and necessary for the government to conduct a fair examination of certain witnesses, if it elects to do so. See Fed.R.Civ.P. 30(d). Moreover, the court concludes that because attorney Mooney's conduct has frustrated the fair examination of witnesses in this case, reasonable costs and attorney's fees incurred by the government in re-deposing any witness are to be borne by attorney Mooney personally, and not by the defendants. See id. Should the government seek to re-depose any witness pursuant to this order, it shall notify defense counsel and the court as indicated below.
The government only identifies specific instances of violations during the depositions of James, Kevin, George P. and Phyllis Kattar, although the court also notes the transgression in George T. Kattar's deposition. The court's order is therefore limited to these five deponents.
Such depositions are to be conducted in accordance with Federal Rule of Civil Procedure 30. All depositions are to be held from 9:30 a.m. until 5:30 p.m. with a one hour lunch break and one 15-minute break in the morning and afternoon sessions, subject to reasonable modifications for health, physical, or transportation reasons. Objections are to be stated concisely, in a non-argumentative, non-suggestive manner. See id.; In re Stratosphere Corp., 182 F.R.D. at 622. " A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3) [of Rule 30(d)]." Fed.R.Civ.P. 30(d) (West 1999). In such circumstances counsel shall succinctly state the reason for the objection and the specific question or part thereof which is objected to. Except as permitted in Rule 30(d)(1), neither deponent's counsel nor the deponent may interrupt the deposition when a question is pending or a document is being reviewed. Otherwise, the depositions are to be conducted in full compliance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence.
The defendants and attorney Mooney are placed on notice that a court order compelling deposition testimony in accordance with the aforementioned criteria and the Federal Rules of Civil Procedure is now extant. Violations of this order may well implicate Rule 37(b) and the sanctions provided therein, including the entry of a default judgment.
Conclusion
In light of the above discussion, the court denies the government's motion for default judgment and its request for litigation expenses, including attorney's fees (document no. 88). However, if the government elects to do so it may re-depose one or more of the following witnesses: George T. Kattar, George P. Kattar, Phyllis Kattar, James Kattar, and Kevin Kattar. Attorney's fees and costs incurred in taking any deposition shall be borne by attorney Mooney, personally, and not by the defendants. Such election to re-depose must be made, and the court and counsel notified thereof, by September 15, 1999. Depositions must be completed by October 15, 1999. No extensions of these deadlines will be granted absent extraordinary circumstances.
SO ORDERED.