Clarity Sports International LLC et al v. Redland Sports et al

Filing 250

ORDER granting in part & denying in part pltfs' motion 221 for sanctions - Motion 221 GRANTED to the extent that the court imposes sanctions against Attorneys Clements & Iaconelli for their inappropriate conduct during the Shepherd depositi on (see order for specific sanctions & instructions re: same), inc. 30 day ddl for submitting letters about disputes to the court; reminding cnsl that in all depos in this case, they shall comply w/ the FRCP inc. FRCP 30(c)(2) & they shall be courteo us, respectful & professional; & motion 221 otherwise DENIED. (See order for complete details.) setting forth specific instructions re; pymt of fees & expensesgarding sanctions imposed, directing that any dis Signed by Magistrate Judge Susan E. Schwab on 7/15/21 (ki)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLARITY SPORTS
INTERNATIONAL LLC and
JASON BERNSTEIN

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Plaintiffs,
v.
REDLAND SPORTS, et al.,
Defendants.

1:19-CV-00305

(Magistrate Judge Schwab)

ORDER
July 15, 2021
I. Introduction.
This is an action concerning claims for tortious interference with existing
contractual relationships in connection with Jason Bernstein’s (“Bernstein”) and
Clarity Sports International LLC’s (“Clarity Sports”) (hereinafter referred to
collectively as “Plaintiffs”) prior representation of NFL football player Kenny
Golladay (“Golladay”). Presently before the court is a motion for sanctions filed
by Plaintiffs. Doc. 221. For the reasons discussed below, we will grant in part and
deny in part the motion for sanctions.

II. Procedural History.
Plaintiffs filed their first complaint on February 22, 2019, alleging two state
law claims for tortious interference with existing contractual relationships. Doc. 1.
Thereafter, Plaintiffs amended their complaint twice (docs. 7, 40) and the matter
was assigned to the undersigned for pretrial management. Doc. 82. After the
briefing and resolution of many discovery motions, Plaintiffs filed a third amended
complaint, which included, inter alia, the addition of CAA Sports LLC (“CAA”)
as a defendant. Doc. 120. The third amended complaint is now the operative
complaint in this matter. Because all parties are familiar with the basic facts
underlying this dispute, we will not repeat them here. Now before the court is
Plaintiffs’ motion for sanctions (doc. 221).
Plaintiffs’ motion for sanctions is based on the conduct of defense counsel
Michael Iaconelli and William Clements (“Defense Counsel”). Doc. 222. Defense
Counsel represent defendants CAA; MVP Authentics, LLC; Jason Smith; Daryl
Eisenhauer (who together own MVP Authentics); and Craig Boone (who owns
Boone Enterprises, hereinafter referred to as “Boone”). Doc. 138.
III. Discussion.
A. Parties’ Contentions.
In their motion, Plaintiffs request the imposition of sanctions based on the
conduct of Defense Counsel during the Rule 30(b)(6) deposition of CAA’s
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corporate representative, Niloofar Shepherd (“Shepherd”). The deposition of
Shepherd occurred on March 3, 2021. Docs. 227, 227-1. Plaintiffs’ motion for
sanctions cites a variety of transgressions that occurred during the deposition
where they assert Defense Counsel’s conduct prevented Plaintiffs from having a
fair opportunity to depose Shepherd. Doc. 222. More specifically, Plaintiffs
estimate that during Shepherd’s deposition, Defense Counsel spoke for thirty-three
percent (33%) of the time. Id. at 1. According to Plaintiffs’ brief in support,
Defense Counsel filled this time “with their speaking objections, coaching of the
witness, arguments and commentary.” Id. at 1. Examples of this behavior include
Defense Counsel’s labeling of a question as “stupid” (doc. 227 at 44), as well as
telling Plaintiffs’ counsel to “shut up” (doc. 227-1 at 5). More examples of this
behavior are littered throughout the deposition transcript. Docs. 227, 227-1.
As a sanction, Plaintiffs request that they be awarded their costs and
reasonable attorneys’ fees for the deposition of Shepherd and for bringing the
motion for sanctions. Doc. 221 at 2. In addition, Plaintiffs request that we “enter
an Order directing Defense Counsel to comply with the Federal Rules of Civil
Procedure in depositions to be conducted in the future in this matter.” Id.

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Defendants responded by filing a brief in opposition. Doc. 234. 1 In their
brief, defendants contend, among other things, that the objections made during the
deposition of Shepherd were “necessitated by the conduct of plaintiffs’ counsel in
conducting the deposition.” Id. at 3. Defendants also note that “no competent
lawyers defending a deposition would allow their client party to be subjected to the
tactics inherent in Comerford’s [Plaintiffs’ counsel] prosecutorial, argumentative,
and repetitive questioning.” Id. at 7. Plaintiffs filed a reply brief, disputing the
authority cited by defendants in their brief. Doc. 239.
B. Legal Standard.
Federal Rule of Civil Procedure 30 governs depositions by oral examination.
The Rule addresses objections during such a deposition:
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).

The brief in opposition was filed on behalf of the defendants represented by
Defense Counsel.
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“A deposition is meant to be a question-and-answer conversation between
the deposing lawyer and the witness.” Hall v. Clifton Precision, 150 F.R.D. 525,
528 (E.D. Pa. 1993). “Although counsel has a right and duty to object to protect
her client from improper questions, it must be done within the rules.” Cmty. Ass'n
Underwriters of Am., Inc. v. Queensboro Flooring Corp., No. 3:10-CV-1559, 2014
WL 3055358, at *8 (M.D. Pa. July 3, 2014). For example, “lawyers are strictly
prohibited from making any comments, either on or off the record, which might
suggest or limit a witness’s answer to an unobjectionable question.” Hall, 150
F.R.D. at 531. Moreover, objections must be ‘“succinct and verbally economical,
stating the basis of the objection and nothing more.’” Birdine v. City of Coatesville,
225 F.R.D. 157, 158 (E.D. Pa. 2004) (quoting Hall, 150 F.R.D. at 530).
“Excessive objections, unnecessary commentary, and repeated interruptions disrupt
the orderly question and answer flow of a deposition and are obstructive to its
purpose.” Animal Legal Def. Fund v. Lucas, No. CV 19-40, 2020 WL 7027609, at
*3 (W.D. Pa. Nov. 30, 2020). Further, “[c]ounsel are expected to conduct
themselves courteously, professionally and in compliance with the Federal Rules
of Civil Procedure.” Id.
Plaintiffs’ request for sanctions is governed by Fed. R. Civ. P. 30(d)(2),
which provides that “[t]he court may impose an appropriate sanction—including
the reasonable expenses and attorneys' fees incurred by any party—on a person
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who impedes, delays, or frustrates the fair examination of the deponent.” Fed. R.
Civ. P. 30(d)(2). 2 “The decision to impose sanctions for discovery violations and
any determination as to what sanctions are appropriate are matters generally
entrusted to the discretion of the district court.” Bowers v. Nat’l Collegiate Athletic
Ass’n, 475 F.3d 524, 538 (3d Cir. 2007). 3 Furthermore, “[w]here a district court
decides to award a monetary sanction, such as attorney’s fees, the total amount of
such a sanction (as well as the initial decision whether to impose such a sanction)
should be guided by equitable considerations.” Doering v. Union Cty. Bd. of
Chosen Freeholders, 857 F.2d 191, 195 (3d Cir. 1988). 4 Nevertheless, a court
‘“may decide that the circumstances warrant imposition of only part of the
adversary’s expenses or perhaps only a reprimand.’” Id. (quoting Lieb v. Topstone
Industries, Inc., 788 F.2d 151, 158 (3d Cir. 1986)).

See Advisory Committee Note to Rule 30, subdivision (d), paragraph (3) (1993
amendment) (explaining that this provision applies to improper objections made by
attorneys during depositions).
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See also Farmers & Merchs. Nat’l Bank v. San Clemente Fin. Group Sec., Inc.,
174 F.R.D. 572, 585 (D.N.J. 1997) (holding that district courts provide magistrate
judges with particularly broad discretion in resolving discovery disputes).

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See also McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 249
n.14 (3d Cir. 2014) (explaining that the Poulis factors do not apply to monetary
sanctions such as an award of costs and attorney fees).
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C. Analysis.
Having reviewed the transcript of Shepherd’s deposition, we conclude that
Defense Counsel impeded, delayed, and frustrated the fair examination of
Shepherd. Thus, sanctions are warranted.
The transcript of Shepherd’s deposition features an abundance of improper
interruptions and objections. Docs. 227, 227-1. Given the exhaustive record of
such already set forth by Plaintiffs in their brief, we find it unnecessary and
redundant to identify every improper interruption and objection made by Defense
Counsel. But, some examples of Defense Counsel’s obstructionist conduct should
be noted.
Defense Counsel engaged in a plethora of “speaking” objections, at times
appearing to coach Shepherd. 5 For example, Plaintiffs’ counsel asked Shepherd,
“Does CAA have any information that it could ever point to suggesting that
someone else other than Todd France sent this?” Doc. 227 at 16. Before Shepherd
could respond, Mr. Iaconelli interjected, “Do you mean other than Todd France’s
sworn testimony and Jake Silver’s sworn testimony?” Id. As another example,

See In re Malofiy, 653 F. App'x 148, 154 (3d Cir. 2016) (explaining that a
speaking objection occurs when counsel improperly testifies rather than merely
states the reason for the objection); see also Vnuk v. Berwick Hosp. Co., No. 3:14CV-01432, 2016 WL 907714, at *5 (M.D. Pa. Mar. 2, 2016) (“[S]peaking
objections, which, through the technical form of an objection, signal to the
deponent the answer that his or her attorney prefers.”).
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later in the deposition, Plaintiffs’ counsel asked Shepherd, “Why has CAA not
asked Mr. France whether the testimony he gave was true?” Id. at 18. Again,
before Shepherd could answer, Mr. Clements commented, “Do you mean other
than it was given subject to sworn oath?” Id. Another example of this behavior
occurred when Plaintiffs’ counsel asked, “Do you agree with me that for the
statements in the Silver Affidavit to be true, it would need to be true that Todd
France did not read the email he received from Jake Silver of January 8, 2019?” Id.
at 27. Mr. Clements, before Shepherd could respond, stated, “Objection,
argumentative. I’m sure there’s more possibilities than just that. But you can
answer.” Id. Shepherd then answered, “Yeah, I was going to say that’s one of the
possibilities.” Id.
Defense Counsel also demonstrated a pattern of adding to Shepherd’s
answers. For example, Shepherd concluded an answer to a question with, “after
you’ve had a chance to interrogate Mr. Silver and Mr. France.” Id. at 30. Before
Plaintiffs’ counsel could follow up, Mr. Iaconelli interrupted with, “And Mr.
Golladay.” Id. at 30. Shepherd then added to her answer, “And Mr. Golladay and
Mr. Boone and whoever else you need.” Id. at 30. Defense Counsel also restated
or reframed Plaintiffs’ counsel’s questions. Doc. 227 at 32. For example, after
Plaintiffs’ counsel asked a question, Mr. Clements interjected, “I think the proper
way to phrase that question is what is CAA’s position about it not telling her what
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it is. Go ahead.” Id. And Defense Counsel also interrupted the deposition by
asking Plaintiffs’ counsel questions. Doc. 227 at 30. For example, Mr. Iaconelli
asked Plaintiffs’ counsel, “John, would you agree that Mr. Golladay’s sworn
testimony in his affidavit completely renders your client’s position in this case
without merit? Do you want to agree with that statement?” Id.
In addition to Defense Counsel’s numerous improper speaking objections
and additions, there is cause for concern about the unprofessional nature of
comments made by Defense Counsel. For instance, the following are examples of
comments Defense Counsel made during the deposition: “not these idiotic
innuendos that you’re trying to explore” (doc. 227 at 14); “You are not working for
the Naval Investigative Service or whatever you did when you were in the Navy. .
.” (id. at 14); “Be quiet” (id. at 18); “stupid question” (id. at 44); and “shut up”
(doc. 227-1 at 5).
Based on the forgoing examples and the numerous other instances when
Defense Counsel interrupted the deposition, answered for the witness, and was
disrespectful and unprofessional, Defense Counsel impeded, delayed, and
frustrated the fair examination of Shepherd, and sanctions are appropriate. “That
depositions proceed under the Federal Rules but occur outside the court’s purview
makes cooperation amongst counsel even more critical.” Williams v. Benshetrit,
No. CV 19-797, 2020 WL 3315982, at *4 (E.D. Pa. June 18, 2020). Such
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cooperation was entirely lacking here. Awarding sanctions for Defense Counsel’s
violation of the standards set forth in Rule 30 is appropriate to redress the expense
and inconvenience that Plaintiffs incurred in connection with Shepherd’s
deposition. Remaining are the questions of who should be sanctioned and what
sanctions are appropriate.
“If an attorney, rather than a client, is at fault, the sanction should ordinarily
target the culpable attorney.” Republic of the Philippines v. Westinghouse Elec.
Corp., 43 F.3d 65, 74 (3d Cir.1994). Thus, sanctions can be imposed on Defense
Counsel.6 Plaintiffs request that we award them their costs and reasonable
attorney’s fees for the deposition and for bringing this motion, and order Defense
Counsel not to obstruct any other deposition in this case. Doc. 222. “The Due
Process Clause of the Fifth Amendment requires a federal court to provide notice
and an opportunity to be heard before sanctions are imposed on a litigant or
attorney.” Martin v. Brown, 63 F.3d 1252, 1262 (3d Cir. 1995) (footnote omitted).
“With regard to sanctions, particularized notice of the grounds for the sanction
under consideration is generally required.” Id. at 1262-63 (footnote omitted).
Given the fact that this motion has been briefed by both sides and the focus of the

See also In re BWP Gas, LLC, No. 05-18754BIF, 2006 WL 2883012, at *2
(Bankr. E.D. Pa. June 13, 2006) (noting that Rule 30(d)(2) can apply to “any . . .
person involved in the deposition”).
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motion is Defense Counsel’s conduct, we feel comfortable that the Due Process
notice requirement has been satisfied.7
We have no difficulty finding that Defense Counsel impeded, delayed, and
frustrated Shepherd’s fair examination. Thus, an award of expenses and attorney’s
fees are warranted pursuant to Fed. R. Civ. P. 30(d)(2). 8 Even so, “[a] court
choosing among such sanctions must ‘ensure that the sanction is tailored to address
the harm identified.’” Klein v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98,
111 (3d Cir. 1999) (quoting Republic of the Philippines v. Westinghouse Elec.
Corp., 43 F.3d 65, 73 (3d Cir. 1994)). Moreover, “[t]he amount of a monetary
sanction should be specifically related to expenses incurred as a result of the
violations.” Underwriters, 2014 WL 3055358, at *10; see also Martin, 63 F.3d at
1263 n.15.
Plaintiffs request an award of their costs and reasonable attorneys’ fees for
the deposition of Shepherd. Doc. 221 at 1. In their brief in support, Plaintiffs assert
that Defense Counsel’s improper objections and commentary accounted for thirtyWe note that in Plaintiffs’ motion for sanctions (doc. 221), they request that these
sanctions be paid for by the clients of Defense Counsel. This specific request is
also made once in the brief. Doc. 222 at 8. But throughout Plaintiffs’ briefs, the
focus is on the conduct of Defense Counsel. Thus, we conclude that Defense
Counsel were on notice that they were subject to sanctions.
7

See Plump v. Kraft Foods N. Am., Inc., No. 02 C 7754, 2003 WL 23019166, at *1
(N.D. Ill. Dec. 23, 2003) (“[C]osts and attorneys' fees awarded are those
incurred as a result of the frustration of fair deposition examination.”)
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three percent (33%) of the deposition transcript. Doc. 222 at 1. After assessing the
transcript and given that at times Defense Counsel raised valid objections, we find
it appropriate to award Plaintiffs 20% of their costs and reasonable attorneys’ fees
for the deposition of Shepherd.
Plaintiffs’ second request is for an award of their costs and reasonable
attorneys’ fees for bringing this motion. Given that Defense Counsel’s conduct
precipitated this motion, we find that an award of reasonable expenses and
attorneys’ fees in connection with this motion for sanctions is also warranted.
Plaintiffs’ final request is that we enter an order directing Defense Counsel
to comply with the Federal Rules of Civil Procedure in depositions. Doc. 221 at 1.
We find that the clear pattern of uncivil and antagonistic conduct of Defense
Counsel in this case merits such an order. We remind counsel that practice before
this court is governed both by the Pennsylvania Rules of Professional Conduct and
the Middle District of Pennsylvania Code of Professional Conduct. All counsel are
admonished that sanctions for any future misconduct in this litigation may reflect
the effectiveness, or lack thereof, of the present corrective action.
IV. Order.
Based on the foregoing, IT IS ORDERED that Plaintiffs’ motion (doc. 221)
for sanctions is GRANTED to the extent that the court imposes sanctions against
Attorneys Clements and Iaconelli for their inappropriate conduct during the
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Shepherd deposition. Attorneys Clements and Iaconelli shall pay 20% of the
reasonable expenses and attorney’s fees that Plaintiffs incurred in deposing
Shepherd and 100% of the reasonable expenses and attorney’s fees that Plaintiffs
incurred in filing and briefing their motion for sanctions. Attorney Clements is
responsible for 50% of those expenses and fees, and Attorney Iaconelli is
responsible for the other 50% of those expenses and fees. Plaintiffs shall provide
Attorneys Clements and Iaconelli an itemized statement of their reasonable
expenses and attorney’s fees for the Shepherd deposition and for the motion for
sanctions. If the parties cannot agree on the reasonable expenses and attorney fees
regarding the deposition and the motion for sanctions, they shall contact us by
letter outlining their dispute within 30 days of the date of this Order. IT IS
FURTHER ORDERED that all counsel are reminded that in all depositions in
this case, they shall comply with the Federal Rules of Civil Procedure, including
Fed. R. Civ. P. 30(c)(2), and they shall be courteous, respectful, and professional.
The motion for sanctions is otherwise DENIED.

S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge

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