Corbello v. DeVito
Filing
584
ORDER Denying 554 MOTION for Sanctions. Signed by Magistrate Judge Peggy A. Leen on 8/29/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DONNA CORBELLO,
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Plaintiff,
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vs.
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THOMAS GAETANO DEVITO, et al.,
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Defendants. )
__________________________________________)
Case No. 2:08-cv-00867-RCJ-PAL
ORDER
(Mot. For Sanctions - Dkt. #554)
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The court conducted a hearing on August 25, 2011, on Defendant Thomas Gaetano Devito’s
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Motion for Sanctions (Dkt. #554). John Krieger, Robert McKirgan and George Paul appeared in person
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on behalf of the Plaintiff. Booker Evans, Maximiliano Couvillier, Samuel Lionel and Lawrence
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Hancock appeared on behalf of the Defendants. The court has considered the Motion, Plaintiff’s
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Response (Dkt. #572), Defendant’s Reply (Dkt. #577), the New Defendants’ Joinder (Dkt. #580), and
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the arguments of counsel at the hearing.
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BACKGROUND
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Defendant Devito seeks an order disqualifying opposing counsel asserting Plaintiff’s counsel
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participated in eliciting false testimony from witness Frank Leanza at his May 18, 2011 deposition in
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this case. Devito maintains that Plaintiff’s counsel bolstered the witness’s credibility by asking a line of
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questions designed to establish that the witness had not spoken about substantive matters with
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Plaintiff’s counsel before his deposition was taken, when this was false, as Plaintiff’s counsel well
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knew. Devito asserts it was only because of defense counsel’s probing cross examination of the witness
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that this falsehood was uncovered, and Plaintiff’s counsel was forced to take the witness on redirect to
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correct his false testimony. Devito argues that the conduct of Plaintiff’s counsel amounted to
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subordination of perjury, constitutes a violation of Nevada Rule of Professional Responsibility
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3.3(a)(3), and that the violations are so egregious that the court should exercise its supervisory power
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over the attorneys appearing in this case to disqualify them.
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Plaintiff opposes the motion vehemently denying that counsel breached their ethical obligations
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during Mr. Leanza’s deposition. Plaintiff’s response is supported by detailed declarations of each of the
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three Plaintiff’s attorneys who were involved in Mr. Leanza’s deposition. The response and supporting
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declarations detail the contact counsel for Plaintiff had with Mr. Leanza, and represent that he was
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repeatedly instructed to tell the truth during his deposition. Plaintiff’s counsel had no idea that Mr.
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Leanza would do anything other than be truthful during his deposition, and were surprised by some of
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his answers on direct examination by counsel for Plaintiff. During the first break of his deposition, Mr.
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Krieger and Mr. Guillot discussed an inaccuracy in one of Mr. Leanza’s answers, and Mr. Krieger
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indicated he would clear things up with further questioning. Plaintiff’s counsel expected Mr. Leanza to
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tell the truth about communications with Plaintiff’s counsel preceding his deposition and was surprised
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when he got the answers he did, and unsure how to proceed. He decided to move onto other areas of
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examination and confer with co-counsel during another break.
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During the next break, counsel represent that Mr. Guillot spoke with Mr. Leanza in the hall and
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reminded him that Leanza had discussed his testimony with Plaintiff’s counsel before the deposition.
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Mr. Leanza appeared nervous, upset and confused. Mr. Guillot responded there was no reasons to be
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nervous if he just told the truth. During a second break, Mr. Krieger conferred with Mr. Guillot and
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Mr. Paul about the witness’s answers. Plaintiff’s counsel were concerned about some of his answers,
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but thought there were innocent explanations for some of his inaccuracies. Plaintiff’s counsel made a
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decision during the break to see how the remainder of the deposition unfolded, expecting counsel for
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Defendants would cross examine Mr. Leanza and correct the record. Alternatively, counsel for Plaintiff
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would “deal with any need to correct or clarify testimony on redirect, or after the deposition if that was
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necessary.”
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During counsel for Defendants’ cross examination, the witness appeared more confused. Later
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in the cross examination Mr. Leanza gave a series of answers to questions that Plaintiff’s counsel knew
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were inaccurate. This caused Mr. Guillot to become angered and frustrated. Mr. Krieger asked for a
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break. Plaintiff’s counsel met with Mr. Leanza in a separate room. A heated conversation ensued in
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which Mr. Guillot yelled at the witness reminding him that he had been repeatedly advised he was
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under the obligation to tell the truth. Mr. Leanza appeared confused, unsettled and completely shaken
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up. Mr. Leanza also gave a number of reasons for testifying the way he did. Mr. Krieger then
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conducted redirect examination and elicited the fact that some of Mr. Leanza’s prior answers during his
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direct and cross examination were incorrect and corrected the inaccurate testimony.
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Counsel for Plaintiff vigorously maintain that at all times they advised Mr. Leanza to tell the
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truth. Counsel for Defendants’ accusation that Plaintiff’s counsel suborned perjury is reckless, and
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having been filed with the court will potentially taint the reputations of all of the Plaintiff’s lawyers
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involved. Plaintiff’s counsel corrected the inaccurate testimony of Mr. Leanza before the deposition
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closed, and expected that cross examination would resolve the inaccuracies without the necessity for
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conducting redirect. However, when cross examination did not fully correct the inaccuracies of Mr.
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Leanza’s testimony, Mr. Krieger took the witness on redirect to elicit corrected responses. Under these
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circumstances, Plaintiff’s counsel argues it did not violate Rule 3.3(a)(3). Plaintiff’s counsel also
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argues that disqualification is a drastic measure which would deprive Plaintiff of counsel of her choice.
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Additionally, courts have become increasingly skeptical of motions to disqualify counsel because they
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have become popular tools used for purely strategic purposes. Finally, counsel for Plaintiff argues Mr.
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Leanza’s testimony should not be excluded as an alternative remedy suggested by counsel for Devito.
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The motion did not cite any authority for the proposition exclusion is an appropriate remedy, and
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vigorous cross examination of the witness will establish any prior inconsistent statements the witness
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has made.
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Devito replies that the declarations supporting Plaintiff’s response to the motion, and
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specifically Mr. Guillot’s declaration, is inconsistent with Plaintiff’s Answer to Interrogatory No. 3
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propounded by Defendant Getting Home, Inc., 39 days after Leanza’s deposition. The interrogatory
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asked the Plaintiff to identify all communications between the Plaintiff or her counsel and Frank Leanza
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at any time. Plaintiff responded to the interrogatory by providing information about contacts between
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Plaintiff’s counsel and Mr. Leanza, which counsel for Devito believes is at odds with the declarations
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supporting the response to the motion for sanctions. Devito also disputes Plaintiff’s characterization of
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Mr Leanza as an elderly, confused witness with a hearing aid who was having difficulty hearing,
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indicating a review of the video and audio taped deposition would refute these characterizations.
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DISCUSSION
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It is undisputed that Mr Leanza testified falsely under oath that he had not had substantive
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discussions about his anticipated testimony with counsel for Plaintiff before the deposition. In fact, he
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had had several substantive discussions with multiple lawyers representing the Plaintiff who took and
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attended his deposition. More specifically, he falsely testified under oath that he had not previously
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told any of the lawyers representing the Plaintiff about a profane and inflammatory remark Devito
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allegedly made to him in 1991 regarding Rex Woodard. Counsel for Plaintiff acknowledges a duty
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under Rule 3.3(a)(3) of the Nevada Rules of Professional Responsibility to take remedial measures to
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correct testimony a lawyer knows to be false, but suggests “immediacy is not the standard.” Counsel
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for Plaintiff argues reasonable remedial measures depend on the circumstances, and that the incorrect
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testimony was eventually corrected before the close of the deposition. Counsel for Plaintiff taking the
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deposition, Mr. Krieger, indicated this was the first time he had ever had a witness testify falsely, and
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that he was taken by surprise, and unsure what to do. He conferred with the other two counsel who
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were present at the deposition, and the decision was made to wait until the end of the deposition to see
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if the inaccuracies would be corrected, and if not, to “deal with it.” The court finds that counsel for
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Plaintiff’s decision to wait until the end of the deposition to see if the inaccurate testimony was
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corrected on cross examination was a serious error of judgment. The court recognizes a lawyer has
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conflicting loyalties when something of this nature happens. Mr. Leanza had provided information to
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Plaintiff’s counsel before the deposition that was highly relevant to Plaintiff’s case, and if true, depicted
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Defendant Devito in a poor light. Counsel owe a duty of zealous advocacy to the client to bring out the
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testimony and use it on the client’s behalf. However, counsel for Plaintiff also has a duty of candor to
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the court and to opposing counsel and an ethical obligation to correct the record when false testimony is
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given.
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By not correcting the witness earlier, counsel for Plaintiff not only exposed themselves to the
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accusations made in the motion now on file before the court, but as a practical matter, also undermined
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the credibility of the witness and the value of his testimony. If counsel for Plaintiff taking the
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deposition had firmly corrected the witness the first time he provided a false or misleading answer, by
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reminding him of the multiple prior conversations that had taken place, it would have immediately let
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the witness know that the instruction to tell the truth was meant. If the witness was merely mistaken, o
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the mistake would have been corrected by refreshing his recollection. If the witness was confused, the
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confusion would have been remedied by a differently phrased question, or if the result of a cognitive
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problem, exposed and explored. Similarly, if, as counsel for Plaintiff suggests, the witness was having
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a problem with his hearing aid and attempting to read lips, that problem would have been explored and
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addressed. Waiting to correct the testimony only compounded the number of times the witness repeated
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the falsehoods in response to slightly different questions.
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The court does not doubt the representations made by counsel for Plaintiff that Mr. Leanza was
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repeatedly instructed to tell the truth during his deposition. However, when counsel allows a witness to
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testify in a manner counsel knows is false, the witness may conclude the instruction to tell the truth was
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given with a wink and a nod to protect the lawyer who is more interested in winning than actually
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eliciting the truth. Promptly correcting the witness would have dispelled that notion.
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The court also finds it was extremely poor judgment for Plaintiff’s counsel to object to opposing
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counsel’s cross examination questions that were designed to clarify the inaccurate testimony by
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objecting that the questions were “asked and answered.” The questions concerning substantive
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conversations between Plaintiff’s counsel and Mr. Leanza were asked. Mr. Leanza provided false
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responses. Under these circumstances, to object that the questions asked on cross examination were
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asked and answered further compounded the problem.
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Notwithstanding the findings that counsel for Plaintiff used poor judgment in the decision to
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wait until the end to correct Mr. Leanza’s false and misleading testimony, and in asserting asked and
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answered objections, the court finds that counsel for Devito has not met his burden of establishing that
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counsel for Plaintiff breached their ethical obligation to take reasonable remedial measures to correct
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false testimony. Nothing in the record supports the highly inflammatory accusation that counsel for
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Plaintiff suborned or attempted to suborn perjury. Motions to disqualify opposing counsel have indeed
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become a popular tool of litigators to disrupt, distract, and deprive a party of the counsel of her choice.
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Courts have become increasingly suspicious of such motions, especially where they are used as a tool to
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attempt to destroy the reputation and credibility of opposing counsel for strategic purposes.
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Although counsel for Plaintiff used poor judgment in not immediately correcting the false
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testimony, it strains credulity to believe that Plaintiff’s counsel concocted a conspiracy to suborn
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perjury on the facts presented before this court. Counsel for Plaintiff deposed Mr. Devito the day
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before Mr. Leanza. Mr. Devito was asked whether he made the comment Mr. Leanza attributed to him
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that counsel for Plaintiff intended to elicit during Mr. Leanza’s deposition. Mr. Devito denied it.
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Counsel for Plaintiff all but announced that they had a witness who was prepared to testify about the
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comment Mr. Devito was asked about at his deposition. Counsel for Plaintiff could only have known
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about the comment if counsel for Plaintiff had spoken to the witness, and expected a witness to so
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testify. Thus, to suggest that counsel for Plaintiff intended all along to hide the fact they had
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communicated with Mr. Leanza about the substance of his testimony, and allowed false testimony to
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stand to bolster his credibility is incredible.
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For all of the foregoing reasons, the court will deny the motion to disqualify and for sanctions.
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Mr. Leanza’s credibility has been severely compromised by his false and misleading testimony on direct
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and cross examination. Vigorous cross examination of Mr. Leanza at trial, if his testimony is still
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offered, will expose his multiple prior inconsistent statements.
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Finally, the court has reviewed Plaintiff’s response to Getting Home, Inc’s Answer to
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Interrogatory No. 3 concerning the communications between Plaintiff’s counsel and Mr. Leanza, and
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understands counsel for Defendants’ concern that the interrogatory response is inconsistent with the
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declarations supporting Plaintiff’s response to the motion for sanctions. The court will require counsel
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for the Plaintiffs to provide the court with a copy of every communication with Mr. Leanza, including
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counsel for Plaintiff’s work product, for in camera review to determine whether the answer to
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interrogatory should be supplemented and/or corrected, and to verify the accuracy of the declarations on
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file.
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IT IS ORDERED that
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Defendant Devito’s Motion for Sanctions (Dkt. #577) is DENIED.
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Counsel for Plaintiff shall have 14 from the date of the hearing, or until September 28,
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2011, to provide the court with copies of all communications with Mr. Leanza prior to
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his deposition related to this case, including counsel’s notes or other work product
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concerning communications with Mr Leanza.
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Dated this 29th day of August, 2011.
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___________________________________________
Peggy A. Leen
United States Magistrate Judge
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