Center for Individual Rights v. Chevaldina

Filing 233

ORDER denying 200 Chevaldina's Motion for Sanctions; denying 200 Chevaldina's Motion to Compel; denying 201 Chevaldina's Motion for an Extension of the Discovery Period. Signed by Magistrate Judge Edwin G. Torres on 6/22/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-20905-Civ-KING/TORRES
CENTER FOR INDIVIDUAL RIGHTS,
Plaintiff,
v.
IRINA CHEVALDINA,
Defendant.
______________________________________/
ORDER ON CHEVALDINA’S MOTION FOR SANCTIONS
AND MOTION FOR AN EXTENSION OF THE DISCOVERY PERIOD
This matter is before the Court on Irina Chevaldina’s motion for sanctions
[D.E. 200] and motion for an extension of the discovery period [D.E. 201] against the
Center for Individual Rights (“Plaintiff” or “CIR”).

Plaintiff responded to

Chevaldina’s motions on June 12, 2018 [D.E. 213, 215] to which Chevaldina replied
on June 22, 2018. [D.E. 232]. Therefore, Chevaldina’s motions are now ripe for
disposition. After careful consideration of the motions, responses, replies, and for
the reasons discussed below, Chevaldina’s motions are DENIED.
I.

BACKGROUND

This is an action for breach of contract. The complaint – filed on March 11,
2016 [D.E. 1] – alleges that Plaintiff represented Chevaldina pro bono in an appeal
before the 11th Circuit in Katz v. Google, Appeal No. 14-14525, in which the
Eleventh Circuit affirmed summary judgment in favor of Chevaldina in a copyright

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infringement action.1 See Katz v. Google, Inc., 802 F.3d 1178 (11th Cir. 2015), aff’g,
Katz v. Chevaldina, 12-cv-22211, 2014 WL 5385690 (S.D. Fla. Sept. 5, 2014).
Plaintiff alleges that Chevaldina had few financial obligations under the retainer
agreement in that case and that Plaintiff paid the out of pocket expenses of the suit.
Plaintiff contends that it only asked Chevaldina for (1) reasonable attorney fees and
expenses as permitted under law, and (2) that Chevaldina provide Plaintiff with
any fees or expenses that were attributable to Plaintiff’s expenditures and/or the
work of its attorneys. If Chevaldina decided to settle the case, Plaintiff alleges that
Chevaldina was also obligated to provide Plaintiff with a reasonable amount in
attorney’s fees and expenses.
In December 2015 – while being represented by another attorney –
Defendant settled all the remaining claims in the Katz case. In the settlement,
Plaintiff claims that Defendant obtained only $10,000 in attorney fees for the work
of Plaintiff’s attorneys as well as both taxable and non-taxable costs.

Shortly

thereafter, Plaintiff sought to challenge the fee award in the Eleventh Circuit, but
Defendant allegedly instructed Plaintiff to withdraw its motion and Plaintiff
reluctantly complied. Therefore, Plaintiff suggests that Defendant did not obtain a
reasonable amount in attorneys’ fees for the work of Plaintiff’s attorneys and that
Defendant breached the retainer agreement.

In exchange for the low sum of

$10,000 in attorney fees, Plaintiff alleges that Chevaldina agreed with Katz to drop
a substantial claim against Chevaldina in excess of $100,000. Because Plaintiff
Plaintiff is a public interest law firm organized under the laws of the District
of Columbia.
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alleges that it has been deprived of a reasonable attorney fee award, Plaintiff seeks
judgment against Chevaldina in an amount of no less than $105,000 – including
reasonable costs and expenses in accordance with 28 U.S.C. § 1920.
II.
A.

ANALYSIS

Chevaldina’s Motion for Sanctions [D.E. 200]

On May 29, 2018, Chevaldina filed a motion for sanctions against Plaintiff’s
counsel for improper conduct that occurred at a deposition on May 18, 2018. [D.E.
200]. On that date, Plaintiff produced Mr. Crespo, who serves as a paralegal for the
Mandel Law Firm. Chevaldina claims that the deposition had to be adjourned after
less than two hours due to the inappropriate behavior of Plaintiff’s counsel David
Mandel (“Mr. Mandel”) and Michael Rosman (“Mr. Rosman”).2 Chevaldina alleges
that Mr. Mandel made numerous speaking objections and added unnecessary
commentary with the goal of derailing the deposition. For example, Mr. Mandel
referred to Chevaldina’s questions as unintelligent and repeatedly instructed Mr.
Crespo not to answer many of her questions. In doing so, Chevaldina believes that
Mr. Mandel spoke more than Mr. Crespo and that he objected approximately one
hundred times before the deposition concluded.
Making matters worse, Chevaldina claims that Mr. Crespo had no knowledge
of the information in the deposition notice relating to Plaintiff’s disclosure of her
protected personal information and was therefore unprepared. And because Mr.
Crespo was unprepared and Plaintiff’s counsel acted inappropriately throughout the
Chevaldina suggests that Mr. Rosman was making noises on the phone in his
attempt to disrupt the deposition.
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deposition, Chevaldina requests (1) that sanctions be awarded in the form of fees
and costs, (2) that the Court compel the continued deposition of Mr. Crespo, and (3)
that the discovery period be extended.
Rule 30 is clear on what types of objections an attorney may make and when
counsel may instruct a deponent not to answer a question. Rule 30 states in
relevant part the following:
An objection at the time of the examination--whether to evidence, to a
party's conduct, to the officer’s qualifications, to the manner of taking
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. A person may
instruct a deponent not to answer only when necessary to preserve a
privilege, to enforce a limitation ordered by the court, or to present a
motion under Rule 30(d)(3).
Fed. R. Civ. P. 30(c)(2).

Testimony taken during a deposition is to be completely

that of the deponent, not a version of the testimony which has been edited or
glossed by the deponent’s lawyer. See Hall v. Clifton Precision, 150 F.R.D. 525
(E.D. Pa. 1993). This means that the witness must be allowed to provide an answer
to the best of his or her ability, free from any influence by the attorney. If the
witness is confused about a question, or if a question seems awkward or vague to
the witness, the witness may ask the deposing counsel to clarify the question.
Moreover, “Rule 30(b)(6) obligates the responding corporation to provide a
witness who can answer questions regarding the subject matter listed in the notice .
. . If the designated deponent cannot answer those questions, then the corporation
has failed to comply with its Rule 30(b)(6) obligations and may be subject to

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sanctions.” King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). When
producing a corporate representative for deposition, a duty extends beyond the mere
act of presenting a human body to speak on the corporation’s behalf. Instead, the
party producing the witness has a duty to prepare the deponent.
Here, Chevaldina’s motion is not entirely without merit because – after a
thorough review of the deposition transcript – Mr. Mandel violated the Federal
Rules when he repeatedly instructed Mr. Crespo not to answer Chevaldina’s
questions, especially those based on form and relevancy. If Mr. Mandel felt
compelled to make objections, he should have made those briefly on the record and
the deposition should have continued with the testimony of Mr. Crespo. Then, if
necessary, the Court would determine any relevancy issues. Alternatively, a motion
for protective order should have been raised and the deposition suspended.
Instead, Mr. Mandel made improper speaking objections and instructed Mr.
Crespo not to answer Chevaldina’s questions, which amounted to providing the
witness with counsel’s preferred answer to the question. This was a clear violation
of the Federal Rules and the amendments to Rule 30 that were intended to combat
this exact sort of conduct that is complained of here. The purpose of Rule 30 is to
ensure that the examination and cross-examination of deponents proceeds as it
would at trial. Therefore, it is well understood that counsel should refrain from
conduct that crosses the line between proper representation of their clients and
improper interference in depositions. Because Mr. Mandel engaged in improper
speaking objections and repeatedly instructed Mr. Crespo not to answer

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Chevaldina’s questions for no justified reason, we conclude that Mr. Mandel’s
conduct violated the Federal Rules.
However, despite Mr. Mandel’s conduct violating the Federal Rules,
Chevaldina’s motion must be denied because it is clear that Mr. Crespo is not aware
of Plaintiff sharing any of Chevaldina’s protected personal information. Chevaldina
questioned Mr. Crespo repeatedly on whether he was aware of Plaintiff violating
the DPPA. But, Mr. Crespo, when he was allowed to answer, testified that he
lacked any knowledge of Plaintiff sharing Chevaldina’s information. And, as for the
remainder of Chevaldina’s questions, many – if not all – of them were either
irrelevant to the facts of this case or vastly overbroad with respect to the deposition
notice. As such, we are unpersuaded that a subsequent deposition would offer any
additional testimony that was not otherwise provided and therefore Chevaldina’s
motion for sanctions is DENIED.
B.

Chevaldina’s Motion for an Extension of the Discovery Period
[D.E. 201]

On May 29, 2018, Chevaldina filed a motion for an extension of the discovery
period3 because (1) Plaintiff’s counsel disrupted her deposition (as stated above) and
(2) Ms. Mandel failed to appear for her noticed deposition. [D.E. 201]. Chevaldina’s
motion lacks merit for at least two important reasons. First, the Court previously
held on May 30, 2018 that Plaintiff was entitled to a protective order for Ms.
Mandel because Chevaldina failed to meet her burden of establishing that the
deponent was an officer, director, or managing agent of CIR. [D.E. 205]. And it is
3

The discovery deadline in this case passed on May 31, 2018. [D.E. 44].
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well settled that the party seeking to take the deposition bears the burden of
establishing the capacity of the person sought to be examined.

As such,

Chevaldina’s motion for an extension of the discovery period fails for the same
reasons as stated before because Chevaldina never met her burden of establishing
that Ms. Mandel is a party to the litigation that may be subject to a deposition
notice.
Second, Chevaldina’s motion is unpersuasive because, although Plaintiff’s
counsel engaged in improper speaking objections during Mr. Crespo’s deposition, we
are unpersuaded that another deposition would provide any additional testimony
that was not otherwise provided on May 18, 2018. The deposition transcript also
establishes that Mr. Crespo was prepared and that he lacked any knowledge on
Plaintiff distributing Chevaldina’s protected personal information.

Accordingly,

there is no reason to extend the discovery period in this case and therefore
Chevaldina’s motion is DENIED.
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Chevaldina’s motion for sanctions [D.E. 200] and motion for an extension of the
discovery period [D.E. 201] are DENIED.
DONE AND ORDERED in Chambers at Miami, Florida this 22nd day of
June, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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