Tajonera et al v. Black Elk Energy Offshore Operations, L.L.C.
ORDER AND REASONS re 583 Motion for Protective Orders or Alternatively, an Order Establishing Deposition Limitations; The Court finds sanctions appropriate in this matter as set forth in document. Signed by Magistrate Judge Michael North.(Reference: All cases)(lag)
EDNA TAJONERA, ET AL.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AND CON. CASES
BLACK ELK ENERGY OFFSHORE
OPERATIONS, LLC, ET AL.
ORDER AND REASONS
Before the Court is Black Elk’s Motion for Protective Orders or Alternatively, an
Order Establishing Deposition Limitations. (Rec. doc. 583). The motion seeks certain
protections concerning the length and scope of questioning in a follow-up deposition of
Black Elk’s CEO, John Hoffman, along with an allocation of time among the parties for the
upcoming seven-hour deposition of another witness, Keith King. In a minute entry issued
following the February 25, 2105 hearing on the motion (rec. doc. 616), the Court ruled
upon the merits of the motion, but reserved a ruling on what it found to be the sanctionable
deposition conduct of one of the lawyers in the case.
This Order and Reasons concerns the allegations of unprofessional and harassing
conduct by counsel for Grand Isle Shipyards (“GIS”), Robert Reich (“Reich”), in the
deposition of Mr. Hoffman. Those allegations are central to Black Elk’s prayer for relief in
the present motion and represent the second time Reich’s conduct has caused a party in
this case to seek relief in a discovery motion before this Court. 1 As the Court noted from
the bench at the hearing held on this motion February 25, 2015, the conduct complained of,
while not the subject of a motion for sanctions, was entirely improper and cannot be
tolerated by the Court. As such, for the reasons stated in open court and for the following
reasons, Reich will be sanctioned herein.
The Relevant Law
There are numerous mechanisms by which district courts exercise sanction powers,
including the Federal Rules of Civil Procedure (through Rules 11, 26, 30 and/or 37); 28
U.S.C. §1927; and the inherent power of the courts to manage their own proceedings and to
control the conduct of those who appear before them. Regardless of the source, it is widely
accepted that the primary purpose of sanctions is to deter frivolous litigation and abusive
tactics. Sanctions seek to deter both the culpable attorney and members of the bar in
general. See, e.g., Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126-27
(1989)(the primary purpose of Rule 11 is deterrence, not compensation); Fred A. Smith
Lumber Co. v. Edidin, 845 F.2d 750, 752 (7th Cir. 1988)(“the most important purpose of Rule
11 sanctions is to deter frivolous litigation and the abusive practices of attorneys”);
Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse §47(A) (2d ed.)(the
purpose of Rule 37 is four-fold: “(1) penalizing the culpable party or attorney; (2) deterring
others from engaging in similar conduct; (3) compensating the court and other parties for
the expense caused by the abusive conduct; and (4) compelling discovery”); Id. at §20 (the
purpose of 28 U.S.C. §1927 is to deter unnecessary delays in litigation).
See rec. doc. 569. In addition, the undersigned is aware that Reich’s conduct during discovery in this case
has been the subject of complaints before the District Judge, which has resulted, at least in part, in the
issuance of two orders – rec. docs. 245 and 247 – which will be discussed in more detail below.
One court recently put it more succinctly: “The purpose of court-imposed sanctions
is to stop reinforcing winning through obstruction.” Security National Bank of Sioux City,
Iowa v. Abbott Laboratories, 299 F.R.D. 595, 597 (N.D. Iowa 2014).
Whether a district court wields it sanction powers under the Federal Rules of Civil
Procedure, 28 U.S.C. §1927, or its inherent power, it does so at its “broad discretion.”
Topalian v. Ehrman, 3 F.3d 931, 934 (5th Cir. 1993). “The discretion vested in the trial court
is granted so its thoughtful exercise will carry out the educational and deterrent functions
of the rule.” Jennings v. Joshua I.S.D., 948 F.2d 194, 199 (5th Cir. 1991), cert. denied, 504 U.S.
Because the present motion concerns Reich’s conduct during a deposition (and
because his deposition conduct has been the subject of at least one previous motion), it is
properly analyzed under Rule 30 and the cases construing it. Rule 30(c)(1) provides that
“[t]he examination and cross-examination of a deponent proceed as they would at trial
under the Federal Rules of Evidence....” Fed.R.Civ.P. 30(c)(1). “During the taking of a
deposition the witness has, in general, the same rights and privileges as would a witness
testifying in court at a trial.” 8A Wright, Miller and Marcus, Federal Practice and Procedure
§ 2113 (2d ed. 1994).
It is well-established – and should be equally well-understood by federal
practitioners – that:
[a]s officers of the court, counsel are expected to conduct
themselves in a professional manner during a deposition. A
deposition is intended to permit discovery of information in
the possession of the deponent or perpetuate the testimony of
the deponent. In either case, it is to be conducted in a manner
that simulates the dignified and serious atmosphere of the
courtroom. Thus, the witness is placed under oath and a court
reporter is present. Conduct that is not permissible in the
courtroom during the questioning of a witness is ordinarily not
permissible at a deposition .... A deposition is not to be used as
a device to intimidate a witness or opposing counsel so as to
make that person fear the trial as an experience that will be
equally unpleasant, thereby motivating him to either dismiss
or settle the complaint.
Under Rule 30(d)(2),
Bordelon Marine, Inc. v. F/V KENNY BOY,
No. 09-CV-3209, 2011 WL 164636 at *5
(E.D. La. Jan. 9, 2011)(citing Ethicon
Endo–Surgery v. U.S. Surgical Corp., 160
F.R.D. 98, 99 (S.D. Ohio 1995)).
[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.
As will be discussed in detail below, Reich violated these rules, and the Louisiana
Rules of Professional Conduct, in the Hoffman deposition. The impact of his sub-standard
conduct in this case is exacerbated by the numerous occasions on which he has been
sanctioned by other judges of this district for similar – and in some cases identical –
For instance, in Bordelon Marine, Inc. v. F/V KENNY BOY, 2 Magistrate Judge Knowles
sanctioned Reich for a multitude of transgressions in two depositions, including behavior
that he has repeated here. The conduct Judge Knowles found sanctionable in Bordelon
included objecting “all too frequently,” with the “majority” of those objections lacking a
valid basis; failing to treat the deponents in that case “as he would have been required to
treat them at a trial in a courtroom”; “storming out of the room”; improperly instructing
2011 WL 164636 (E.D. La. Jan. 9, 2011).
witnesses not to answer questions and being an “instigator of discovery disputes” that
continued for “pages upon pages of the deposition transcripts.” Id. at *5-6. Judge Knowles
found that Reich’s conduct “impeded and frustrated the fair examination of the two
deponents” in that case and sanctioned Reich for conduct that crossed the bounds of
zealous advocacy. Id. at *6. In so deciding that matter some four years ago, Judge Knowles
observed (as the Court does here) that “this is not the first time that Reich’s behavior at a
deposition has been called into question and resulted in the imposition of sanctions.” Id. at
*6 n. 3 (citing Landers v. Kevin Gros Offshore, L.L.C., No. 08-CV-1293, 2009 WL 2046587
(E.D. La. July 13, 2009)).
In Landers, Magistrate Judge Shushan of this court was confronted with a motion for
sanctions against Reich and his client arising out of Reich’s conduct in multiple depositions
of the plaintiff in that case. After citing much of the same authority and caselaw cited
herein, Judge Shushan found that Reich’s conduct in those depositions was sanctionable in
a number of ways. In so finding, Judge Shushan wrote:
[t]he behavior of [Reich] in the deposition was improper. He
repeatedly interrupted the witness and would not let him
complete his answer and provide his explanation. His tone of
voice can best be described as yelling. Many of his questions
were improper. The instruction by [opposing] counsel not to
answer certain questions was improper, Fed R. Civ. P. 30(c)(2),
but, under the circumstances, it was understandable. The
record demonstrates that [Reich] repeatedly failed to conduct
his examination of [Plaintiff] as he would at the trial and
denied him the same rights and privileges due a witness
testifying in court at a trial. Sanctions will be imposed.
Landers v. Kevin Gros Offshore, L.L.C.,
No. 08-CV-1293, 2009 WL 2046587 at *4
(E.D. La. July 13, 2009).
In addition to these two cases in which Reich was sanctioned for transgressions
essentially identical to those in this case, there is at least one other recent instance in this
District in which Reich was sanctioned by Chief Magistrate Judge Wilkinson for signing an
unnecessary discovery motion, which Judge Wilkinson described as “another motion of the
type that I’ve seen Mr. Reich file regularly for 19 years now.” See XL Specialty Ins. Co. v.
Bollinger Shipyards, Inc., No. 12-CV-2071, 2014 WL 2155242 at *2 n. 17 (E.D. La. May 21,
2014)(Vance, J.)(affirming Magistrate Judge Wilkinson’s order assessing sanctions). 3
Notably, in the three cases cited above, the courts sanctioned Reich personally,
declining to sanction his client.
Against this backdrop, the Court turns to Reich’s conduct in the Hoffman deposition.
REICH’S DEPOSITION CONDUCT
The particular exchange of which Black Elk complains in its brief took place well
into Hoffman’s deposition. It involves Reich’s asking Hoffman the same improper question
some seven times over four pages of transcript:
REICH: -- would you like to apologize to the families for the
casualty and for the death of their loved ones?
TALLEY: Let me object to the form of that question. Bob,
you’re completely out of line.
REICH: You can answer it.
HOFFMAN: Certainly, I have sorry (sic) in my heart as to what
happened. I also have a degree of anger in my heart that Grand
Isle Shipyard construction workers did not know basic rules of
using plumbers plugs, about what was in the oil tanks, about
talking about isolation. There was a water release that was
reported in the incident investigation which would have
Judge Wilkinson’s comments are found at rec. doc. 169-3, p. 7 in No. 12-CV-2071.
suggested that there was no energy isolation. So, sir, I put it
back to you, would Grand Isle Shipyard want to apologize to
REICH: Let me object to responsiveness.
REICH: Sir, I ask you the question one more time. It’s a yes or
no question. Now that you know that Monte Richard made the
decision to go away from flange-to-flange bolting connection
and go to a connection that had hot work in the field, with that
knowledge, because you told us today when you came in here
that you didn’t know that, now that you have that knowledge,
do you want to apologize to the families for Black Elk’s
involvement in this casualty?
TALLEY: Let me object to the form of the question. It’s also
been asked and answered.
REICH: You can answer.
TALLEY: Answer it again, sir.
REICH: Yes or no?
TALLEY: And you’re not limited to a yes or no despite counsel’s
instruction to have you answer it yes or no. The proper
instruction is that you may answer a question in any way you
best see fit. Mr. Reich knows that, given his 40 years of the
practice of law.
REICH: Now, that’s not true.
HOFFMAN: Hot work is done every day in the Gulf of Mexico
and if proper procedures are followed and proper techniques
are employed, hot work offshore can be done safely.
REICH: Are you finished?
REICH: Object to responsiveness. It’s a simply yes or no, sir.
Now that you know that, do you want to apologize or not?
Does Black Elk want to apologize now that you know that the
hot work that caused this explosion was mandated by Black
Elk’s procedure of field welds or at least –
HOFFMAN: If – if –
REICH: -- precipitate it?
HOFFMAN: If you read –
TALLEY: Let me object to the form of the question.
REICH: Just yes or no –
TALLEY: It’s been asked and –
REICH: -- and then you can answer.
TALLEY: -- answered. And once again, you’re not limited to the
yes or no that Mr. Reich is trying to instruct you.
HOFFMAN: If Grand Isle Shipyard would have followed the
exact words and the procedure as laid out in Mr. Richard’s email we wouldn’t be having this conversation today.
REICH: So even knowing what you know, you still don’t want to
apologize is what you’re telling us?
TALLEY: Object to the form.
REICH: Even knowing what you know, even knowing that Black
Elk is the one who chose the procedure that involved field
welding, knowing that, you still don’t want to apologize is what
TALLEY: Let me object to the form of the question. It’s been
asked and answered, and it’s a very improper question.
REICH: You can answer.
HOFFMAN: I would say that I carry a great deal of sorry (sic) in
my heart –
REICH: That’s not my question. Do you want to apologize?
HOFFMAN: -- and I find it repulsive that you would suggest this
all fall on Black Elk’s shoulders when it is very clear, very clear
to a first grader, that the technique used that day by Grand Isle
workers caused the explosion. If a different technique would
have been employed, welding 101 offshore in a hydrocarbon
environment would have been followed, we wouldn’t be
having this conversation.
(Tr. at 195-98).
As a threshold matter, the Court finds the initial question to be unprofessional and
offensive and agrees with counsel for Black Elk that Reich was “completely out of line” for
asking it. There is no relevance or probity at all in such a question, nor is there any
legitimate purpose for Reich to ask such a question of a co-defendant. It is, in the Court’s
view, nothing more than a premeditated stunt with no legitimate objective. Standing alone,
the Court finds this conduct violates the Code of Professionalism of the Louisiana State Bar
Association, which requires, in part, that counsel conduct themselves with “dignity, civility,
courtesy and a sense of fair play.” 4 Unfortunately, the subject question does not stand
Unsatisfied with Hoffman’s answer to his improper question, Reich proceeded to ask
it again – six more times. (Id. at 195-98). In doing so, he repeatedly argued with the
The Code was adopted by the Judges of the Eastern District of Louisiana on August 4, 1999.
witness and demanded a “yes or no” answer to his question. 5 This is a violation of both the
Federal Rules and the District Judge’s April 9, 2014 Order that “counsel shall not engage in
harassing or repetitive questioning.” (Rec. doc. 247). It is also a hallmark of Reich’s
improper deposition technique.
In fact, in the 73 pages of transcript in which he
questioned Hoffman, Reich objected to the responsiveness of an answer an astonishing 22
times. The Court’s review of these objections reveals that they are almost uniformly invalid
and are simply a tool employed by Reich to set up his demands for “yes or no” answers.
Almost every single time he so objects, Reich follows with a statement that his question is
“simple” and demands a “yes or no” answer. This is improper.
The Court finds this to be a deliberate tactic employed in furtherance of Reich’s
intentionally combative deposition strategy. Reich’s “attacking” style is on full display
throughout his examination of Hoffman, evident not only in the foregoing exchange but in
the countless number of times he interrupts Hoffman while he attempts to answer Reich’s
often vague and compound questions.
The Court also must note that Reich has displayed similar conduct throughout this
litigation, necessitating multiple telephone calls to this Court and at least one other
discovery motion, in which his similarly harassing and argumentative conduct in the
deposition of Steve Arendt was detailed and which resulted in this Court ordering that
Reich was prohibited from participating in Arendt’s follow-up deposition. (Rec. docs. 565
(motion) and 569 (Order)). Additionally, it is apt to note here that, on the same day this
matter came on for hearing, the Court entertained argument on a motion for sanctions in
The Court also viewed a DVD of the deposition and notes that during the repetitive questioning of Hoffman
at this point in the deposition, Reich was clearly arguing with Hoffman and repeatedly failed to treat Hoffman
with “dignity, civility, courtesy and a sense of fair play,” as required by the Code of Professionalism.
another case in which Reich’s conduct in three depositions was the focus of the motion.
The Court advised Reich at that hearing (as it did in the hearing on this motion) that his
conduct was unprofessional and that he would be sanctioned. (Rec. doc. 188 in No. 13-CV4811).
It is inconceivable that a lawyer as experienced as Reich could believe that the
conduct he displayed in the Hoffman deposition would be allowed in a courtroom. He has
been sanctioned or admonished for similar conduct far too many times to credibly argue
that this is good-faith conduct that should be tolerated by the Judges of this Court. It
appears to this Court that, far from being deterred by the sanctions awarded against him in
the past, Reich almost seems to wear them like a badge of honor in these depositions.
Somehow, Reich (and others) must be made to understand that his unprofessional conduct
cannot and will not be tolerated.
Money sanctions have done nothing thus far to
accomplish this goal and the Court declines to try that approach again here. 6 This Court’s
challenge, then, is to fashion a sanction that might have some deterrent effect on Reich and
arrest this behavior.
The Court finds the following sanction appropriate in this matter: Reich is to attend
an additional ten (10) hours of continuing legal education in 2015 over and above what he
is required to attend as a member of the Louisiana bar, all of which must be in the area of
professionalism or ethics and offered either by the Federal Bar Association or the Louisiana
State Bar Association. No later than February 1, 2016, he is to provide the Court with
documentation that he has complied with this order. Reich is further ordered to provide a
copy of this Order and Reasons to his client and to file into the record no later than March
The Court also notes that no party has requested monetary sanctions as a consequence of Reich’s conduct
11, 2015 an affidavit confirming that he has complied with this directive and identifying by
name the client representative to whom he provided the Order.
Reich is further cautioned that should similar deposition conduct or tactics by him
come to the attention of this Court at any time in the future, in this case or any other, the
sanction ordered (or, more likely, recommended) by the Court will be severe – in all
likelihood more severe than this Court is empowered to employ. Finally, a copy of this
Order and Reasons will be circulated by this Court to the Chief District Judge and to all
Magistrate Judges of the Eastern District.
New Orleans, Louisiana, this 3rd day of
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE
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