Emerson Electric Co. v. Suzhou Cleva Electric Applicance Co., Ltd. et al

Filing 219

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Motion to Strike the Deposition of Hong Chen and for Sanctions (Doc. 198 ) is DENIED. IT IS FURTHER ORDERED that Plaintiffs request for an award of the fees associatedwith responding to the motion is DENIED. Signed by Magistrate Judge Shirley P. Mensah on 1/5/15. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EMERSON ELECTRIC CO.,
Plaintiff,
vs.
SUZHOU CLEVA ELECTRIC
APPLIANCE CO., LTD.,
CLEVA HONG KONG LIMITED,
CLEVA NORTH AMERICA, INC., and
SEARS, ROEBUCK AND CO.,
Defendants.

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Case No. 4:13-CV-01043 SPM

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Strike the Deposition of Hong
Chen and for Sanctions (Doc. 198). For the reasons stated below, the motion will be denied.
I.

FACTUAL BACKGROUND
In early September 2014, Emerson’s lead counsel (Jennifer Hoekel) and Defendants’ lead

counsel (Steven LeBlanc) exchanged emails in which they agreed that the personal deposition of
Hong Chen and the Rule 30(b)(6) depositions of Suzhou Cleva and Cleva Hong Kong (with
Hong Chen as corporate designee) would be conducted October 21st through October 24th in
Hong Kong. In an email dated September 9, Mr. LeBlanc requested that Ms. Hoekel let him
know whether Emerson planned to have an attorney appear in person so that he could do the
same. On September 17, Emerson served Defendants with deposition notices reflecting the
agreed-upon dates. Upon receiving the notices, Mr. LeBlanc notified Ms. Hoekel that he had not
realized that she would be taking the depositions in person, and he requested that the depositions
be delayed by two days so he could attend. It is unclear whether Ms. Hoekel responded.

In a conversation on October 14, 2014, Mr. LeBlanc told Ms. Hoekel that Defendants had
associated with local counsel in China who would attend the depositions in person. The parties
dispute whether Mr. LeBlanc affirmatively told Ms. Hoekel that Defendants’ U.S. counsel also
intended to attend the deposition by telephone. In any event, it does not appear that Emerson’s
attorneys were ever explicitly informed that Defendants would be represented at the deposition
by their U.S. counsel and not by the local counsel in China.
Around this time, Ms. Hoekel learned that Emerson wanted Peter Yang, in-house counsel
for Emerson, to attend the Hong Kong depositions. Mr. Yang executed a Protective Order
assurance, which Ms. Hoekel sent to Mr. LeBlanc on October 20, 2014. Mr. LeBlanc emailed
back, objecting to Mr. Yang being present for discussions of sensitive business information that
would be designated as Attorneys’ Eyes Only under the stipulated protective order but stating,
“otherwise, Defendants have no objection to Peter Yang attending the depositions.”
On October 22, 2014, Mr. Chen arrived at his deposition with Allen F. Tao, a partner
with Liu, Shen & Associates in Beijing, China. According to declarations filed by Ms. Hoekel,
the videographer, and the court reporter, Mr. Tao stated that he represented the witness, and he
asked that Mr. Moose be connected so that he could appear by telephone. The videographer, who
had just set up her own equipment, showed Mr. Tao the phones in the room and told him that
they were not in a position where they could be used. Someone from the office attempted to
resolve the issue but was not able to do so. According to the declarations of Ms. Hoekel, the
videographer, and the court reporter, Mr. Tao stated that the deposition could continue without
Mr. Moose’s participation. Both the videographer and court reporter stated that they never heard
Ms. Hoekel insist that the deposition take place without Mr. Moose or other counsel present. In
contrast, according to Mr. Chen’s affidavit, Mr. Tao “informed [Ms. Hoekel] that Defendants

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would be represented by Richard M. Moose, who would participate by telephone,” and “[Ms.
Hoekel] responded that no telephone was available in the conference room in which the
deposition was being conducted and insisted that the deposition commence as scheduled without
Mr. Moose’s participation.”
The deposition began without Mr. Moose, and Mr. Tao identified himself on the record
as “the legal counsel of Cleva Suzhou.” At several points, Mr. Tao objected to Mr. Yang’s
presence. Ms. Hoekel repeatedly refused to ask Mr. Yang to leave, indicating that she was only
seeking information that did not qualify as Attorneys’ Eyes Only information under the
protective order. Ms. Hoekel eventually did ask Mr. Yang to leave.
During the lunch recess, the phone was set up, and Mr. Moose appeared by phone.
However, there were technical difficulties, and the deposition was adjourned for the day. When
Ms. Hoekel returned to her hotel, she received an email, sent earlier in the day from Mr.
LeBlanc, asking her not to conduct any examination without Mr. Moose being present and
stating that Mr. Yang was not permitted access to any document designated Attorneys’ Eyes
Only under the protective order.
Mr. Chen’s deposition was resumed the next day. Over the next two days, Mr. Moose
appeared by phone, but the connection was repeatedly lost and had to be re-established. Mr. Tao
was present for the duration of the deposition; however, Mr. Yang did not return after the first
day of depositions.

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II.

DISCUSSION
A. Emerson Did Not Depose Mr. Chen Without Counsel Present
Defendants first move to strike the individual deposition of Mr. Chen on the ground that

Ms. Hoekel conducted the deposition without counsel being present.1 The Court finds no basis
on which to strike the deposition. Mr. Chen arrived at his deposition with an attorney, Mr. Tao,
who introduced himself as counsel for the witness and who later (on the record) described
himself as counsel for “Cleva Suzhou.” There is no evidence that Defendants ever informed Ms.
Hoekel in advance of the deposition that Mr. Moose, or any other particular attorney, would be
representing either the witness or Defendants. There is also no evidence that Defendants ever
worked with Ms. Hoekel in advance of the deposition to set up a conference call or other means
of allowing Mr. Moose or any other attorney to participate by phone. Ms. Hoekel only learned
that Mr. Moose wanted to participate by phone from Mr. Tao, who later stated that the deposition
could proceed without Mr. Moose.2 Under these circumstances, it was reasonable for Ms. Hoekel
to believe that Mr. Tao represented Mr. Chen and Defendants, and it was reasonable for her to
proceed with the deposition without Mr. Moose’s involvement.
Defendants’ assertion that Ms. Hoekel “orchestrated” these events by “refus[ing] to
answer whether the depositions would be conducted by telephone or in person until it was too
late for Defendants’ counsel to make travel arrangements” is unpersuasive. There is nothing

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Defendants’ motion contains no citations to any rules or cases addressing the authority of the
Court to grant a motion to strike under these circumstances or similar circumstances.
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The undersigned recognizes that Hong Chen stated in his affidavit that Ms. Hoekel insisted that
the deposition proceed without the appearance of Mr. Moose. However, that affidavit is
contradicted by the declarations of Ms. Hoekel, the videographer, and the court reporter. Given
that Mr. Chen testified that he speaks only “a little bit” of English and that his statement
concerns the substance of a conversation (conducted in English) to which he was not a party, the
Court finds the other declarations to be more persuasive than his. The Court further notes that
Defendants have not submitted any declaration from Mr. Tao.
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before the Court to suggest that Defendants’ U.S. counsel were falsely lulled into believing that
Emerson’s counsel would not travel to China to take the depositions in person. Nor is there
anything in the record to suggest that Emerson’s counsel somehow prevented Defendants’ U.S.
counsel from attending in person. Indeed, more than a month before the depositions, Defendants
were aware that Emerson’s counsel would be attending the depositions in person. Defendants
have failed to explain why more than a month’s notice was insufficient to allow their U.S.
counsel to arrange to appear in person. Defendants have also failed to explain why they did not
attempt to avoid the problems that arose here by simply advising Emerson’s attorneys in advance
of the deposition that U.S. counsel (and not the local counsel) would be representing the parties
and by providing the pertinent contact information. Defense counsel’s failure to clearly
communicate and/or to think through logistical challenges posed by counsel or Defendants’
desires is not a reason for sanctioning Emerson.
Defendants’ argument that Ms. Hoekel could easily have obtained a usable telephone and
has “no excuse” for proceeding without one is not supported by the record. As the affidavits of
the court reporter and videographer make clear, there were significant logistical difficulties
associated with setting up a telephone in the room where the deposition was occurring. Upon
learning of these difficulties, both Ms. Hoekel and Mr. Tao agreed to proceed with the deposition
rather than waiting for them to be resolved.
In sum, Ms. Hoekel reasonably believed that Mr. Tao was acting as counsel for Mr. Chen
and Defendants, and she acted reasonably in proceeding with Mr. Chen’s deposition without
additional counsel present. In light of this finding and the fact that Defendants offer no authority
supporting their motion to strike, the Court will not grant the motion to strike on this basis.

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B. Mr. Yang’s Presence at the Deposition Is Not Grounds for Striking the
Deposition
Defendants’ second argument is that Mr. Chen’s deposition should be stricken, and/or
other sanctions imposed, because Mr. Yang’s presence at the deposition was improper and
violated the terms of the protective order.3 The Court disagrees. When Defendants learned that
Mr. Yang planned to attend the deposition, Defendants objected “to any Emerson employee
having access to information designated as Attorneys’ Eyes Only” and indicated that their
objection included “an Emerson employee being present at the deposition during questions that
elicit sensitive business information.” Defendants referred Emerson’s counsel to paragraph 8 of
the protective order, which states, in part, “The deposition of any witness (or any portion of such
deposition) that includes confidential information shall be taken only in the presence of persons
who are qualified to have access to such information.”
It was reasonable for Emerson’s counsel to interpret this email exchange to mean that Mr.
LeBlanc did object to Mr. Yang being present when sensitive business information was
discussed, but did not object to Mr. Yang being present when other matters were being
discussed. Indeed, if that was not Defendants’ position, it is difficult to tell what Defendants’
counsel meant when he said, “Otherwise, Defendants have no objection to Peter Yang attending
the depositions.”
Defendants do not identify any questions posed before Mr. Yang left the deposition that
elicited sensitive business information, nor does it appear to the Court that any such information
was elicited. Indeed, Defendants have voluntarily made Mr. Chen’s entire deposition public by
filing his deposition as an exhibit not under seal, an action that appears inconsistent with their
position that the deposition contained sensitive business information that should not have been

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Again, Defendants fail to cite any rules or cases in support of their argument.
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heard by an Emerson employee. The Court acknowledges that it may have been a better course
of action for Emerson’s counsel to have erred on the side of caution by sending Mr. Yang out of
the deposition at Mr. Tao’s first objection. However, her actions were reasonable in light of her
prior email exchange with defense counsel, and her actions do not appear to have caused any
prejudice to Defendants. Thus, the Court finds no basis for striking Mr. Chen’s deposition or
imposing other sanctions.
C. Emerson’s Request for Fees Will Be Denied
Emerson requests that the Court award it the fees associated with responding to the
motion under 28 U.S.C. § 1927, which provides that an attorney who “multiplies the proceedings
in any case unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Such
sanctions are warranted “when an attorney’s conduct multiplies the proceedings unreasonably
and vexatiously and, when viewed objectively, manifests either intentional or reckless disregard
of the attorney’s duties to the court.” EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 996 (8th
Cir. 2006) (quotation marks omitted). Although the instant motion will be denied, the Court does
not find that the instant motion was sufficiently unreasonable to warrant an award of fees under
this statute, so Emerson’s request will be denied.
For all of the above reasons,
IT IS HEREBY ORDERED that Defendants’ Motion to Strike the Deposition of Hong
Chen and for Sanctions (Doc. 198) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s request for an award of the fees associated
with responding to the motion is DENIED.
Dated: This 5th day of January, 2015.
/s/ Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

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