Whitney Information, et al v. Xcentric Ventures, et al

Filing 165

ORDER denying 154 the Plaintiff Whitney Information Network, Inc.'s Motion for Sanctions. Signed by Magistrate Judge Sheri Polster Chappell on 11/21/2007. (LMH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WHITNEY INFORMATION NETWORK, INC., a
Colorado corporation,
Plaintiff,
-vs-

Case No. 2:04-cv-47-FtM-34SPC

XCENTRIC VENTURES, LLC., an Arizona limited
liability company; BADBUSINESSBUREAU.ORG,
an Arizona limited liability company and ED
MAGEDSON, an individual,
Defendants.
______________________________________

ORDER
This matter comes before the Court on the Plaintiff Whitney Information Network, Inc.’s
Motion for Sanctions (Doc. #154) filed on October 19, 2007. The Plaintiff filed a Supplement to the
Motion for Sanctions (Doc. # 158) on October 31, 2007. The Defendant filed its Response (Doc.
# 161) on November 5, 2007. The Motion is therefore, ripe for review.
The Plaintiff alleges that during the deposition of Ed Magedson taken on August 1, 2007, the
Defense Counsel passed a note to Magedson while questioning was taking place. The Plaintiff
therefore, moves to have the Maria Crimi Speth, the Defendant’s Counsel, pro hoc vice status
revoked and deny her the right to appear before the Middle District, and impose the costs and fees
for the retaking of Magedson’s deposition in Arizona. As grounds for the retaking of the deposition,
the Plaintiff states that Magedson filed an errata sheet stating that he was in error in his deposition

testimony, when he said he did not author three (3) e-mails suggesting that an individual should post
a comment on RipOffReport.com. Magedson’s errata sheet states he did in fact author and send
those e-mails. As a result, the Plaintiff argues that Speth should be removed from the case and that
it should be allowed to redepose Magedson at Magedson’s expense.
The Defendant responds the note was passed during a break in the questioning and further
that the instant Motion was brought for the purpose of delay. The Defendant further argues that
Magedson’s errata sheet applied to e-mails written in regards to another company and has nothing
to do with the Plaintiff’s Complaint.
Rule 30(b)(6) of the Federal Rules of Civil Procedure instructs that the examination and crossexamination of deponents should generally proceed as it would at trial. Quantachrome Corp. v.
Micrometrics Instruments Corp., 189 F.R.D. 697, 701 (11th Cir. 1999). The Plaintiff relies on Hall
v. Clifton Precision, 150 F.R.D. 525, 527 (E.D. Penn. 1993), for the proposition that no
communications should occur between a counsel and deponent during a deposition. The Hall Court
ruled that a witness and his attorney may not confer during a deposition even if during a break in
questioning or lunch recess. Id. at 529.
Whether counsel can speak with a deposition witness during a break is still an unsettled
question. See Steven Baicker-McKee, William M. Janssen, and John B. Corr, Federal Civil Rules
Handbook 2007, (West 2007) (citing to Hall, 150 F.R.D. at 527; In Re Stratosphere Corp. Securities
Litigation, 182 F.R.D. 614, 620 (D. Nev. 1998)). The Court cannot find a Middle District nor
Eleventh Circuit case that directly contradicts nor supports the absolute ban the Plaintiff contends the
Hall decision requires. Further, the parties have not supplied the court with any applicable law on
the issue. However, it is clear from the language of the statute that passing a note during a deposition

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is not proper conduct, and should not be repeated. Nevertheless, after a review of the Motions,
Responses, and Eleventh Circuit case law regarding the incident, the Court does not find good cause
to sanction the Defendant nor its counsel Speth. The note was passed during a break with no
question pending albeit while the deposition was in session. The note does not seem to be relevant
to the errata sheet which the Plaintiff relies upon to compel Magedson to appear at a new deposition
for that reason.
Notwithstanding the Court’s determination that sanctions are not appropriate at this point in
time, the Court cautions both parties that depositions should be limited to what they are intended to
be under the Federal Rules, a question and answer session between a lawyer and a witness aimed at
uncovering the facts of the lawsuit. Collins v. International Dairy Queen, 1998 LEXIS 8254 *4 (11th
Cir. June 3, 1998). The Rules are designed to insure that the testimony taken during the deposition
is completely that of the deponent rather than a version of the testimony which has been edited or
glossed by the deponent’s lawyer. Id. Counsel for both parties should be aware that future disruptive
conduct such as note passing, unwarranted communications, suggestions or cautions that indicate
how a witness should answer, may lead to sanctions by this Court. The parties are reminded that
discovery in this district should be practiced with a spirit of cooperation and civility. M.D. Fla. Rules
of Discovery I(A)(1), an attitude that has been woefully lacking in this particular case for quite some
time.
Accordingly, it is now

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ORDERED:
The Plaintiff Whitney Information Network, Inc.’s Motion for Sanctions (Doc. #154) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this

Copies: All Parties of Record

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21st

day of November, 2007.