Cohen v. Trump

Filing 75

ORDER Following Telephonic Discovery Conference. Signed by Magistrate Judge William V. Gallo on 5/19/15.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ART COHEN,
Plaintiff,

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DONALD J. TRUMP,

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Defendant.

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Civil No. 13-CV-2519-GPC (WVG)
ORDER FOLLOWING
TELEPHONIC DISCOVERY
CONFERENCE

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I. BACKGROUND

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On April 14, 2015, this Court held a telephonic Discovery Conference with counsel

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for both parties. The parties sought the Court’s guidance during a deposition as to whether

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Defendant’s objections were proper. Plaintiff argued that Defendant was making speaking

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objections. Plaintiff expressed concern that Defense counsel was coaching the witness and

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obstructing Plaintiff’s ability to obtain an accurate response from the witness. During the

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Discovery Conference, Plaintiff cited a case called Doe v. City of San Diego, 2013 WL

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6577065 (S.D. Cal. Dec. 13, 2013) to support his position that Defendant’s objections were

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improper.

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Defense counsel argued that his objections were appropriate, as all objections were

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based on proper grounds such as lack of foundation, relevance, misstates testimony, and

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other similar objections. Defense counsel argued that he was not coaching the witness, but
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rather, was trying to make sure that the witness understood the questions being asked. He

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explained that he was not making two or three sentence objections.

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II. RELEVANT LAW

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During a deposition an attorney may properly state objections “concisely in a

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nonargumentative and nonsuggestive manner.” Fed.R.Civ.P. 30(c)(2). As a general rule,

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“instructions not to answer questions at a deposition are improper.” Detoy v. City & Cnty.

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of San Francisco, 196 F.R.D. 362, 365 (N.D. Cal. 2000). “A person may instruct a deponent

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not to answer only when necessary to preserve a privilege, to enforce a limitation ordered

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by the court, or to present a motion under Rule 30(d)(3).” Fed.R.Civ.P. 30(c)(2) (emphasis

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added). “If a party believes that a particular question asked of a deponent is improper for

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any other reason, that party may object; however, ‘the examination still proceeds; the

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testimony is taken subject to any objection.’” Mendez v. R+L Carriers, Inc., 2012 WL

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1535756, at *1 (N.D. Cal. Apr. 30, 2012) (quoting Fed.R.Civ.P. 30(c)(2).)

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Under Rule 30(d)(3), “[a]t any time during a deposition, the deponent or a party may

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move to terminate or limit it on the ground that it is being conducted in bad faith or in a

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manner that unreasonably annoys, embarrasses, or oppresses the deponent or party...If the

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objecting deponent or party so demands, the deposition must be suspended for the time

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necessary to obtain an order.” Fed.R.Civ.P. 30(d)(3)(A).

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III. COURT DISCUSSION

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A. DEFENDANT’S OBJECTIONS WERE PROPER

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During the Discovery Conference, the Court read the case cited by Plaintiff, Doe v.

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City of San Diego, a case from this judicial district. Doe v. City of San Diego, 2013 WL

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6577065. In Doe, counsel instructed one witness not to answer no fewer than twenty-eight

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times. Id. at 5. Counsel’s instructions not to answer were preceded by various objections,

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including that the question at issue had been asked and answered, invaded the privacy rights

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of the witness and/or other non-parties, exceeded the scope of the deposition and/or lacked

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relevance, lacked foundation, sought personnel information and official information from

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the police department, assumed facts, and misstated the prior testimony of the witness. Id.
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The Doe court found that most of counsel’s objections did not provide adequate

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grounds for his instructions to the witness not to answer. Doe v. City of San Diego, 2013

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WL 6577065, at *5. The court stated that an attorney can instruct “a deponent not to answer

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only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or

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to present a motion under Rule 30(d)(3).” Id; citing Fed. R. Civ. P. 30(c) (2). Therefore, the

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court found that counsel’s objections that questions had been asked and answered, exceeded

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the scope of the deposition, lacked relevance, assumed facts, and misstated the prior

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testimony of the witness, were improper grounds for instructing the witness not to answer.

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Id; see Jadwin v. Abraham, 2008 WL 4057921, at *5 (E.D.Cal. Aug. 22, 2008) (“[A]n

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objection that the question might have been repetitive was not a proper basis to instruct the

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witness not to answer it.”).

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Here, the Court determined that the Doe case did not provide support for Plaintiff’s

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argument that Defendant’s objections were improper. During the Discovery Conference, the

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Court noted that in Doe, the objections were improper because they were followed by

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instructions to the witness not to answer the question. The objections themselves were not

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improper. The Court distinguished the Doe case from the instant situation because here,

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Plaintiff did not argue that Defendant was instructing the witness not to answer. Rather,

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Plaintiff’s dispute was with the form of Defendant’s objections.

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After distinguishing the Doe case upon which Plaintiff relied, the Court determined

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that Defendant’s objections were proper. The Court noted that, if Defense counsel attempted

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to telegraph an answer to the witness through objections, such objections would be entirely

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improper. However, it did not appear that Defense counsel was using his objections to

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telegraph answers to the witness. Further, Defendant was not asserting objections on the

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basis of relevance or misstates testimony, and subsequently instructing the witness not to

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answer.

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B. PRIOR COURT ORDERS

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During the Conference, the Court directed the parties’ attention to a March 27, 2015,

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Court Order in this case, notifying the parties that sanctions may be imposed for involving
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the Court in another phantom and basic dispute. (Doc. No. 64 at 2.) The Court noted that

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there was not consistency throughout the district courts regarding whether form objections

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were proper, and thus, this was not an issue that the Court needed to resolve for the parties.1/

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The Court explained that the parties should have recognized there are divergent viewpoints

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throughout the district courts, and resolved the issue on their own without pausing the

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deposition and contacting the Court for guidance.

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During the Conference, the Court also discussed its November 20, 2014, Scheduling

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Order, which stated, “...if the depositions in this action are conducted properly and met with

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unnecessary objections, the Court may issue an Order expanding the number of depositions.”

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(Doc. No. 58 at 2.) The parties were once again placed on notice that if either side finds it

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necessary to involve the Court yet again in the resolution of a phantom and basic dispute, the

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parties should expect the Court to seriously consider imposing sanctions.
IV. COURT RULING

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At the conclusion of the Conference, the Court ordered Defendant to assert clear and

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succinct objections. The Court noted that anything more than a clear and concise objection

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may be considered a speaking objection, which is improper and prohibited. The Court also

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told Defendant that Plaintiff was entitled to ask the witness about documents, and therefore,

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Defendant should not object on the basis that the documents speak for themselves.

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1/

For example, a district court in the Northern District of Iowa stated that attorneys are
required, not just permitted, to state the basis for their objections. Sec. Nat’l Bank of Sioux
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City v. Abbott Labs., 299 F.R.D. 595, 602 (N.D. Iowa 2014). However, the court recognized
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require lawyers to state nothing more than unspecified ‘form’ objections during depositions.”
Id. at 603 (emphasis in original).
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The Court recognized that, if either party acts contrary to the Court’s guidance, one

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side will undoubtedly inform the Court. The Court warned that it was prepared to impose

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harsh sanctions if it determined that either party was acting contrary to its guidance.

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IT IS SO ORDERED.

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DATED: May 19, 2015

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Hon. William V. Gallo
U.S. Magistrate Judge

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