Judge: Mark H. Epstein, Case: 21SMCV00272, Date: 2023-04-25 Tentative Ruling
Case Number: 21SMCV00272 Hearing Date: April 25, 2023 Dept: R
This is a motion that the court appoint a referee at
defendant’s expense. It is based on defendant’s and defense counsel’s
conduct at the most recent deposition.
The court has personally listened to and watched the entire deposition (which was videotaped). Based on that review, the motion is GRANTED.
At the last hearing, the court had some sharp words relating to defense counsel’s conduct, including giving a speech about her view of the strength of plaintiff’s case and a threat to sue plaintiff and plaintiff’s counsel for malicious prosecution. The court stated, quite clearly, that such conduct was inappropriate. And yet, it was done again.
As to the deposition, there were relatively few questions to which there was not some objection. And many were coaching. Plaintiff’s counsel would often get an answer and then ask “Is it your testimony that . . .” with what plaintiff viewed was an encapsulation of the answer just given. While one might object “asked and answered” (although it is not inappropriate here to clarify given defendant’s statement that his English was not good), the objection was also virtually always accompanied by “misstates the witness’s testimony.” That objection does not lie. As an illustration, a question “Is it your testimony that you have no text messages?” is not subject to the objection “misstates testimony.” The question is whether that is the testimony; it is not a statement of testimony. But by saying “misstates the witness’s testimony,” the attorney is telling the witness to give a different answer—to say “no, that is not my testimony.” That is coaching. (The situation might be different were the question “after you deleted the text messages, did you try to un-delete them?” and where the prior answer was “I never deleted any messages.”) This was done more times than the court could count. Counsel also continually kept re-phrasing the question asked and then telling the witness to answer it. In fairness, the re-phrasing was generally fair. But even so, it is not the witness’s counsel’s job to rephrase the question asked.
At one point (about 42 minutes in) defense counsel—who had been raising her voice a number of times—accused plaintiff’s counsel of raising his voice to the witness. In fact, having heard the tape, counsel did not raise his voice, although he plainly was frustrated. But being frustrated is not the same as yelling. Especially given the number of times defense counsel raised her voice and the number of times defendant raised his voice, it was inappropriate to try and make a record that plaintiff’s counsel was raising his voice when he was not.
In fairness, much of the problem was that plaintiff’s counsel was asking the same question many times. This was in regard to the number of emails that there were or that were deleted or other instances in which the witness could not give a precise number or date and plaintiff was seeking an estimate. Plaintiff’s counsel would ask for the estimate and the witness would often become agitated and rude. In many of those instances, defense counsel attempted to play a very helpful role by telling the witness to calm down or instructing him to answer. But in other instances, counsel continuously objected in what appears to be an effort to interfere. For example, when the witness could not say how many messages he had received from one sister about plaintiff, counsel would ask for an estimate. The witness would get upset and eventually (after counsel objected “asked and answered, he said he could not give one” or words to that effect) he would not estimate. Plaintiff’s counsel then would say something like “was it over 1,000?” and the process would start over. That is not inappropriate for plaintiff’s counsel. It is a method often used to try and get at least some basic range if possible. That said, quite a lot of time was spent on this issue. While the court cannot say how important this testimony was or was not, at least at first glance a better way to do this would have been for plaintiff’s counsel to move to a different topic and perhaps come back to the estimates later if really needed. It plainly was causing great agitation to the defendant.
Defense counsel accused plaintiff’s counsel of deliberately attempting to invade the privilege. That related to a period when defendant’s co-counsel was present but lead counsel was not. In fact defense counsel was wrong, which is probably why there was no objection to the question when it was asked. Plaintiff’s counsel asked if defendant had seen the court’s order. He did not inquire further. That is not an invasion of the privilege and certainly did not warrant defense counsel’s comment.
At one point, defendant stated that he had given all of his documents to counsel. Counsel then interjected that she had provided everything to plaintiff’s counsel. Plaintiff’s counsel asked how many documents defendant had, which led to defense counsel objecting and stating that she took that as an accusation that she had been withholding evidence. The question was not an accusation and it was not improper given the fact that defendant deleted some number of text messages (again, to be fair, defendant testified that they were deleted before litigation began).
Perhaps the worst conduct in the case was approximately 52 minutes in. For about 5 minutes, defense counsel--for no discernable reason--again threatened to sue plaintiff and plaintiff’s counsel at the conclusion of the litigation for malicious prosecution and commented on her view of the overall weakness of plaintiff’s case. As the court said last time, such a speech is utterly inappropriate. Her claim that this was done to ensure that no one thought she was waiving the privilege objection this court had already overruled or that she was waiving her client’s right to sue for malicious prosecution later is simply not credible. It can only be viewed as a deliberate act in defiance of this court’s order that such speeches have no place in a deposition. Worse, given that defendant was constantly angry and raising his voice at plaintiff’s counsel, this sort of behavior appears to have been deliberately calculated to add fuel to the fire. Or at least the court cannot think of any other reason for defense counsel to have acted that way.
Defense counsel also constantly interrupted plaintiff’s
counsel. The typical pattern was that defense counsel would make a
speech. When plaintiff’s counsel attempted to respond, defense counsel
would interrupt and not allow plaintiff’s counsel to finish the
statement. Plaintiff’s counsel would comment on that and ask if he could
be allowed to respond, but defense counsel never allowed him to do so.
That happened multiple times. The court believes that such colloquy was
unnecessary, but having elected to make a speech defense counsel should have
allowed plaintiff’s counsel to respond. If a further response by defense
counsel is needed, so be it. But defense counsel simply shouted down
plaintiff’s counsel. The court is unsure of the motivation for defense
counsel’s rude and unprofessional behavior, but it is exactly the sort of thing
that concerned the court last time.
The fact is that defendant and his counsel made the deposition impossible. While counsel stated that she and her client were prepared to answer whatever questions were asked, that is not what the record shows. When plaintiff’s counsel finally shut down the deposition, defense counsel accused him of bad faith. The court finds no bad faith by plaintiff’s counsel in adjourning the deposition.
Equally troubling, defense counsel stated in opposition that plaintiff’s counsel mocked her accent. If true, that sort of conduct by plaintiff’s counsel is independently sanctionable and the court takes that kind of thing very seriously. It is extremely troubling for an attorney to mimic someone’s accent. Doing so exhibits unprofessional and unethical bias and prejudice. Doing so in front of the other person’s client is even worse. In fact, that is the principal reason why the court listened to the entire transcript rather than the excerpts to which plaintiff pointed. The court listened carefully for any such conduct. The court did not find anything that fit that description, or anything where the court was even unsure. The court will ask defense counsel for the specific time when the comment was made and the court will listen again. If it is there, the court will take action against plaintiff’s counsel. But if there is nothing there, the court admonishes defense counsel in the very strongest terms that throwing those sorts of accusations around are unethical on her part and grossly unprofessional. Again, the court invites defense counsel to tell the court at what minute the offending statement was made so that the court can pay special attention thereto.
Having heard the entire transcript, the court cannot say that the problem lies solely with defense counsel—defendant was also acting inappropriately in terms of his elevated level, which started almost immediately. While some of the problem may be defendant’s claim of a language issue, that was not all of it. And while the court cannot say that plaintiff’s counsel was entirely blameless (given that there were many questions that were repeated), the balance of blame tilts very sharply against the defendant and his counsel. Although, having said that, and in fairness to defense counsel, there were many times when defendant was getting heated and defense counsel tried to calm him down. And never once did defense counsel instruct the witness not to answer a question. That helpful conduct, though, does not outweigh the improper conduct detailed above.
The court will therefore GRANT the motion. The court will appoint a discovery referee. The cost will be borne by defendant, but will be subject to potential re-allocation upon recommendation by the referee should the referee find future misconduct by plaintiff or plaintiff’s counsel. For clarity, this means that if a party seeks to re-allocate the cost, that must first be brought to the referee, but either party may seek review from this court from the resulting order—whether the request is granted or denied. The court’s review will utilize the same standard as other orders by the referee. The court is not ordering defense counsel to pay for the reference, although the court believes that an argument can be made that such an order would be appropriate as a sanction for counsel’s misbehavior. The referee will be responsible for all discovery issues and will preside over all depositions. The reference is pursuant to section 639, and therefore the referee’s orders are really reports and recommendations and the court will consider them as such. Given that this transcript is essentially useless due to defendant’s behavior and defense counsel’s actions, plaintiff will have the entire 7 hours provided by the code to conduct the deposition and that time will exclude any time that defense counsel is speaking and any colloquy. That time can be extended by the referee.
The referee will be chosen in the following manner. On Friday, April 28, 2023 at 2:00 pm, each party will nominate by email four potential referees to the other side including the nominee’s CV and rate schedule. If one name appears on both lists, that person will be the referee. If more than one name appears on both lists, then the referee will be chosen by lot and the remainder will be ranked also by lot from amongst the common names. If there are no common names, then no later than May 2, 2023 at 2:00, each party may, by email, strike one name from the other side’s list. Not later than May 4, 2023 at 2:00, the parties will file a JOINT submission to the court of the remaining six nominees. They will be listed in alphabetical order with the CV and rate attached. There will be no indication as to which party nominated which person and there will be no argument made. The court will then rank the nominees, 1-6, with the first person being the referee if that person accepts the assignment. If not, then the parties will go down through the list. As soon as a referee has accepted the appointment, plaintiff will present the court with the order of reference. Each nominee will be a retired judicial officer or active member of the California Bar.
The reason for the reference is the extraordinary level of hostility between the parties and counsel including repeated inappropriate behavior by defense counsel during the depositions as discussed in this order and the prior order, and continued inappropriate behavior despite having been warned. The court believes that these parties and their counsel will not be able to engage in proper meet and confer sessions and that depositions require the supervision of a judicial or quasi-judicial officer largely due to inappropriate behavior by defendant and his counsel; the parties and their counsel are unable to take a deposition unsupervised, again largely due to defense counsel’s behavior.