Schaffhauser v. United Parcel Service Inc

Filing 81

ORDER granting 24 MOTION to Compel Answers MOTION for Sanctions filed by United Parcel Service Inc, and denying 49 MOTION for Sanctions and Fees filed by Chris Schaffhauser. The Court imposes a monetary sanctio n of $500.00, which shall be paid by Mr. Schaffhauser's counsel to UPS to offset fees incurred by UPS in the taking of Mr. Schaffhausers deposition and in the filing of this motion and in no way paid by Mr. Schaffhauser. Signed by Judge Kristine G. Baker on 1/21/14. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CHRIS SCHAFFHAUSER
v.

PLAINTIFF
Case No: 4:12-cv-00599 KGB

UNITED PARCEL SERVICE, INC.

DEFENDANT

ORDER 

Before the Court are defendant United Parcel Service, Inc.’s (“UPS”) motion to compel
answers and for sanctions (Dkt. No. 24) and Mr. Schaffhauser’s motion for fees and sanctions
(Dkt. No. 49). For the reasons that follow, UPS’s motion to compel answers and for sanctions is
granted, and Mr. Schaffhauser’s motion for fees and sanctions is denied.
I.

UPS’s Motion To Compel Answers And For Sanctions

Federal Rule of Civil Procedure 30(c)(1), which addresses depositions, provides in
pertinent part:
The examination and cross-examination of a deponent proceed as they would at
trial under the Federal Rules of Evidence, except Rules 103 and 615.
Fed. R. Civ. P. 30(c)(1). Neither Federal Rule of Evidence 103 nor 615 apply in this instance.
Federal Rule of Civil Procedure 30(c)(2) provides in pertinent part:
An objection at the time of examination—whether to evidence, to a party’s
conduct, to the officer’s qualifications, to the manner of the taking of the
deposition, or to any other aspect of the deposition—must be noted on the record,
but the examination still proceeds; the testimony is taken subject to any objection.
An objection must be stated concisely in a nonargumentative and nonsuggestive
manner.
Fed. R. Civ. P. 30(c)(2) (emphasis added); see Armstrong v. Hussmann Corp., 163 F.R.D. 299,
303 (E.D. Mo. 1995) (“In general, counsel should not engage in any conduct during a deposition
that would not be allowed in the presence of a judicial officer. . . . Attorneys are also prohibited

from acting as an intermediary during their client’s deposition—from interpreting opposing
counsel’s questions; having private conferences with their client during the deposition; and
conferring with their client about a document presented by the deposing attorney.”); Hall v.
Clifton Precision, 150 F.R.D. 525, 528, 531 (E.D. Pa. 1993) (“A deposition is meant to be a
question-and-answer conversation between the deposing lawyer and the witness. There is no
proper need for the witness’s own lawyer to act as an intermediary, interpreting questions,
deciding which questions the witness should answer, and helping the witness to formulate
answers. The witness comes to the deposition to testify, not to indulge in a parody of Charlie
McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient
record. It is the witness—not the lawyer—who is the witness. . . . “[L]awyers are strictly
prohibited from making any comments, either on or off the record, which might suggest or limit
a witness’s answer to an unobjectionable question.”). Violations of Rule 30 are punishable by
sanctions. Rule 30(d)(2) provides: “[t]he court may impose an appropriate sanction—including
the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes,
delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2).
This Court is very reluctant to sanction conduct by counsel who are engaged in efforts to
represent zealously their clients. However, certain standards of conduct must be adhered to by
all counsel, even in such pursuits. Here, based on the record as a whole, Mr. Schaffhauser’s
counsel “impede[d], delaye[d], and frustrate[d] the fair examination of the deponent” by
coaching Mr. Schaffhauser. See Fed. R. Civ. P. 30(d)(2). The Court notes in passing counsel’s
many uses of speaking objections. More egregious is that counsel appears on this record to have
passed his client a note during questioning that read “[t]ell him about conversation with Jim
Wilson after suit” (Dkt. No. 33-1, at 46) and testified for Mr. Schaffhauser by reminding Mr.

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Schaffhauser to whom he talked at UPS about his demotion (Dkt. No. 33-1, at 61). Most
egregious in this Court’s view is that, while a question posed by opposing counsel was pending
and before Mr. Schaffhauser could answer, counsel whispered to his client outside the hearing of
the court reporter to remind him “of a statement [he] had already previously made” (Dkt. No. 241, at 6-7). In the deposition transcript, Mr. Schaffhauser’s counsel does not deny or dispute that
he engaged in this conduct. Mr. Schaffhauser adopted his counsel’s suggested answers. An
exchange on the record at the deposition follows:
Q

Okay. Are you aware of any other manager or supervisor at UPS that engaged in
the same conduct you did, made a statement about a subordinate that I’m going to
knock the black off of—or I would knock the black off of that person?
[Counsel for Mr. Schaffhauser]: Hold on just a second.
[Counsel for UPS]: No, no, no, no, no. I just asked a question . . . . You
can’t talk to your witness.
(WHEREUPON, the witness and counsel confer outside the
hearing of the court reporter.)
[Counsel for UPS]: Note for the record that while a question is pending,
[counsel for Mr. Schaffhauser] tapped the witness on the leg and leaned
over and whispered to his client. Please note that for the record.
[Counsel for Mr. Schaffhauser]: Please note that that is accurate. I’m
representing my client. Go ahead.
[Counsel for UPS]: [I]t’s just like on the witness stand, when a question is
pending, you cannot—
[Counsel for Mr. Schaffhauser]: Just ask him a question. Go ahead.
[Counsel for UPS]: No, sir.
[Counsel for Mr. Schaffhauser]: Go ahead. I want to make sure his
testimony is correct, so go ahead. Ask him the question.
[Counsel for UPS]: Is it your testimony? What—you’ve got to tell—
[Counsel for Mr. Schaffhauser]: Ask him—ask him—
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[Counsel for UPS]: Tell me what you told your client.
[Counsel for Mr. Schaffhauser]: Tell—yeah. Go ahead and tell him what
I told you.
[Counsel for UPS]: No. You tell me.
[Counsel for Mr. Schaffhauser]: I’m not telling—hey, go question
somebody else. You’re not going to question me.
[Counsel for UPS]: You can’t talk to the witness when a question—
[Counsel for Mr. Schaffhauser]: Just ask him the question.
[Counsel for UPS]: —is pending and tell him what to—what was said.
[Counsel for Mr. Schaffhauser]:
question.

Go ahead and—and ask him the

[Counsel for UPS]: Whatever you said is inappropriate.
[Counsel for Mr. Schaffhauser]: Go ahead and tell him what I told you.
That’s fine.
[Counsel for UPS]: No. Actually, I’m not going to ask that question.
[Counsel for Mr. Schaffhauser]: Oh, okay, because you don’t want to hear
it. Okay. That’s fine. Okay.
...
Q

What did your—your attorney tell you while I was asking you a question?

A

He reminded me that—of a statement I had already previously made in my
statement to Stan Roux. . .

(Dkt. No. 41-1, at 73-75).
Other courts have sanctioned or ordered costs and fees to be paid by attorneys who
coached witnesses in similar ways. See, e.g., Cordova v. United States, 2006 WL 4109659, at
*5-7 (D.N.M. July 30, 2006); Frazier v. Se. Penn. Transp. Auth., 161 F.R.D. 309, 316-17 (E.D.
Penn. 1995).

Likewise, this Court finds that sanctions are warranted under Rule 30(d)(2)

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because Mr. Schaffhauser’s counsel’s coaching “impede[d], delaye[d], and frustrate[d] the fair
examination of the deponent.” See Fed. R. Civ. P. 30(d)(2). The Court imposes a monetary
sanction of $500.00, which shall be paid by Mr. Schaffhauser’s counsel to UPS to offset fees
incurred by UPS in the taking of Mr. Schaffhauser’s deposition and in the filing of this motion
and in no way paid by Mr. Schaffhauser.
II.

Mr. Schaffhauser’s Motion For Fees And Sanctions

During October 2013, Mr. Schaffhauser and UPS, through email between the offices of
their respective counsel, discussed possible dates for the deposition of Dr. Brent Sprinkle. Mr.
Schaffhauser contends that, on October 22, 2013, the parties confirmed Dr. Sprinkle’s deposition
would take place at his office on December 2, 2013, beginning at 2:00 p.m. UPS argues,
however, that after further consideration it determined not to depose Dr. Sprinkle and that it
neither issued a notice of deposition nor served Dr. Sprinkle with a subpoena to appear for a
deposition, either of which Mr. Schaffhauser’s counsel would have received. Mr. Schaffhauser
provides no evidence that UPS did issue a notice of deposition or serve with subpoena Dr.
Sprinkle.
Apparently relying entirely on the parties’ email exchange, Mr. Schaffhauser’s counsel
alleges that he spent three-to-four hours preparing for Dr. Sprinkle’s deposition, which he was
neither taking nor defending, and traveling to Dr. Sprinkle’s office, which is located five miles
from his own office. When he arrived at the office, Dr. Sprinkle’s office manager informed him
that UPS’s counsel’s office had called on November 21, 2013, to tell them that the deposition
would not take place. UPS claims that it did not contact Mr. Schaffhauser’s counsel because the
deposition had never been formally noticed and because it did not realize that Mr. Schaffhauser’s
counsel believed the deposition to be scheduled despite the lack of notice or a subpoena. Mr.

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Schaffhauser provides no evidence beyond conclusory allegations that UPS intended to
inconvenience purposefully his counsel.
Based on the above, Mr. Schaffhauser requests that, pursuant to an unspecified provision
of Federal Rule of Civil Procedure 37, the Court grant fees and sanctions against UPS, including
reimbursement of three hours of preparation time for Dr. Sprinkle’s deposition and for counsel’s
costs. The Court declines to do so. On the record before it, the Court is not in a position to
determine that UPS acted in bad faith by failing to notify Mr. Schaffhauser that Dr. Sprinkle’s
deposition, for which there was neither a notice of deposition issued nor a subpoena served,
would not take place.
***
In sum, UPS’s motion to compel and for sanctions is granted, and Mr. Schaffhauser’s
motion for fees and sanctions is denied. The Court imposes a monetary sanction of $500.00,
which shall be paid by Mr. Schaffhauser’s counsel to UPS to offset fees incurred by UPS in the
taking of Mr. Schaffhauser’s deposition and in the filing of this motion and in no way paid by
Mr. Schaffhauser.
SO ORDERED this the 21st day of January, 2014.

_____________________________
Kristine G. Baker
United States District Judge

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