Yuri (URI) Kasparov v. Ambit Texas LLC et al

Filing 175

MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendants' Motion to Compel Plaintiff to Reappear for Deposition and for Sanctions Based on Plaintiffs Obstructive Conduct During His Deposition [Dkt. No. 170 ]. (Ordered by Magistrate Judge David L. Horan on 10/26/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
YURI (URI) KASPAROV,
Plaintiff,
V.
AMBIT TEXAS, LLC and STEVEN
THOMPSON,
Defendants.

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No. 3:16-cv-3206-G-BN

MEMORANDUM OPINION AND ORDER
Defendants Ambit Texas, LLC and Robert Stephen Thompson have filed a
Motion to Compel Plaintiff to Reappear for Deposition and for Sanctions Based on
Plaintiff’s Obstructive Conduct During His Deposition, see Dkt. No. 170 (the “MTC”),
moving under Federal Rules of Civil Procedure 30 and 37 to compel the renewed
deposition of Plaintiff Yuri (Uri) Kasparov because of Mr. Kasparov’s and his counsel’s
obstructive conduct during Mr. Kasparov’s deposition.
All discovery matters in this case have been referred to the undersigned United
States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of
reference from Senior United States District Judge A. Joe Fish. See Dkt. No. 134.
In accordance with the Court’s December 16, 2016 Standing Order on Discovery
[Dkt. No. 138], Defendants and Mr. Kasparov have filed a Joint Status Report on
Defendants’ Motion to Compel Plaintiff to Reappear for Deposition and for Sanctions
Based on Plaintiff’s Obstructive Conduct During his Deposition. See Dkt. No. 172.
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Based on the parties’ filing in compliance with the Court’s Standing Order, although
the Court previously ordered the MTC to be unfiled, see Dkt. No. 171, the Court will
now address the MTC as presented through the Joint Status Report.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part Defendants’ Motion to Compel Plaintiff to Reappear for
Deposition and for Sanctions Based on Plaintiff’s Obstructive Conduct During His
Deposition [Dkt. No. 170].
Background
Defendants deposed Mr. Kasparov in Jacksonville, Florida on July 13, 2017.
According to Defendants, Mr. Kasparov “engaged in a systematic effort to deprive
Defendants of the ability to use Plaintiff’s deposition testimony, and Plaintiff’s conduct
was aggravated by his counsel’s repeated use of improper ‘form’ objections.” Dkt. No.
172 at 4. Defendants more fully explain that they
were deprived of a full and fair opportunity to depose Plaintiff in this case
based on Plaintiff’s and his counsel’s conduct during Plaintiff’s deposition.
As will be shown below and in the attached exhibits, Plaintiff engaged in
an intentional, systematic effort to deprive Defendants of the ability to
use the deposition by refusing to give responsive answers uncluttered by
Plaintiff’s own non-responsive, volunteered, self-serving narrative of his
own views of the case. Throughout the entire deposition, defense counsel
was forced to ask questions as many as seven times before obtaining a
responsive answer. On many such occasions, Plaintiff never gave a
responsive answer to the question asked or, if he did, he accompanied the
response with non-responsive, self-serving speeches. Plaintiff’s counsel
impeded the deposition and exacerbated Plaintiff’s misconduct by
repeatedly making objections to the “form” of the question in response to
clearly proper questions and, on at least twenty occasions, by instructing
Plaintiff not to answer permissible questions.
Id. at 3-4.
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Defendants contend that, “[b]y refusing to give responsive answers, repeatedly
objecting to proper questions, and instructing Plaintiff not to answer allowable
questions, both Plaintiff and his counsel deprived Defendants of their ability to fully
and fairly take Plaintiff’s deposition.” Id. at 4. “Under Federal Rules of Civil Procedure
30 and 37, Defendants respectfully request that the Court order Plaintiff to reappear
for a full deposition in Dallas, Texas and pay for the costs of the court reporter and
videographer for his first deposition” in the amount of $5,424.00 and “further request
that the Court order Plaintiff to provide responsive, non-evasive answers to questions
at his renewed deposition and warn Plaintiff that any further obstructive conduct will
result in dismissal of his case with prejudice.” Id.; see also id. at 31.
Mr. Kasparov responds that he “conducted himself very admirably at his
deposition,” and,
[i]n the face of tremendous stress applied to him by the Defendant’s
counsel in seven hours of rigorous and extremely aggressive and
contentious cross-examination encompassed in the 10 hour day at the site
of the deposition, the circumstances facing Mr. Kasparov from the
perspective of his ailing physical and mental health, and the pressure of
his federal lawsuit weighing upon his shoulders, Mr. Kasparov never lost
his temper with Defendants’ counsel or his patience with the deposition
process itself. In the medical records filed under seal, at AEO bates
stamped P-00519 his doctor’s notes of their meeting held on July 10,
2017, just three days before Mr. Kasparov’s deposition on July 13, 2017,
describes a significant problem with his speech pattern as a part of his
medical condition.
Since the deposition on July 13, 2017 additional, seemingly
insurmountable obstacles now face Mr. Kasparov, who has been the
caretaker for his 89 year old mother for decades and who is and has been
for several weeks in the Baptist Hospital in Jacksonville, Florida, placed
on a ventilator for life support weeks ago, and unresponsive to the point
that her doctors have recommended he authorize the removal of the
ventilator as nothing further can be done for her. As a consequence, Mr.
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Kasparov is unable to travel away from Jacksonville and has precious
little time to spend away from his mother’s bedside in the Jacksonville
hospital.
Id. at 31-32 (footnotes omitted).
More specifically, Mr. Kasparov asserts that “Defendants’ counsel improperly
objected to Plaintiff’s counsel’s instruction to his client on two occasions to refuse to
answer on the grounds of harassing and hostile repetition”; “Plaintiff’s counsel did not
obstruct the counsel’s conduct of the deposition”; “Plaintiff’s counsel’s use of the
‘objection to form’ in the deposition was proper”; “[n]o witness coaching took place at
Mr. Kasparov’s deposition”; and that, “[o]f the ‘21' instructions not to answer that
Defendants’ counsel now objects to, the number should be sixteen instructions not to
answer which requested privileged information under the laws of Florida marital
privilege, as two (not three) were concerning hostile and harassing repetitious
questioning as Plaintiff’s counsel has discussed above, and one was simply an objection
to form without any instruction not to answer and two others were answered by Mr.
Kasparov before the instruction was given to him.” Id. at 33-50.
Mr. Kasparov contends that he “and his attorney were not obstructive, nor did
Plaintiff conduct himself at any time during his deposition in a hostile or disrespectful
manner, and always did his best to respond fully to the questions that were put to him
by Defendants’ counsel.” Id. at 52. But, he argues, “[i]f the Court, after weighing the
arguments and authorities made and cited by both sides in this lawsuit, decides
violations of the discovery rules did occur, Plaintiff requests that the Court consider
denying sanctions against Plaintiff for those violations which the Court believes
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occurred and limiting any second deposition to a deposition by not more than ten (10)
written cross examination questions under Rule 31, FRCP, with no questions which
were already asked at the first deposition, and no right to re-cross examination by
follow up written questions.” Id. at 52-53 (footnote omitted).
Legal Standards
Federal Rule of Civil Procedure 30 governs the conduct or counsel, parties, and
deponents in connection with a party’s deposition as an initial matter, and Rule
30(c)(2) governs objections to deposition questions and when a party must answer. See
FED. R. CIV. P. 30(c)(2). “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.” Id. “An
objection must be stated concisely in a nonargumentative and nonsuggestive manner.”
Id. “An objection to a deponent’s competence – or to the competence, relevance, or
materiality of testimony – is not waived by a failure to make the objection before or
during the deposition, unless the ground for it might have been corrected at that time.”
FED. R. CIV. P. 32(d)(3)(A). “An objection to an error or irregularity at an oral
examination is waived if: (i) it relates to the manner of taking the deposition, the form
of a question or answer, the oath or affirmation, a party’s conduct, or other matters
that might have been corrected at that time; and (ii) it is not timely made during the
deposition.” FED. R. CIV. P. 32(d)(3)(B).
And Rule 30(c)(2) provides only three situations in which a deponent may
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properly be instructed not to answer a question – “only when necessary” (1) to preserve
a privilege, (2) to enforce a limitation previously ordered by a court, or (3) to present
a motion under Federal Rule of Civil Procedure 30(d)(3) to terminate or limit the
deposition on the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party. Id. (“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).”).
“‘Directions to a deponent not to answer a question can be even more disruptive than
objections.’” Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 591 n.7 (S.D. Tex. 2011)
(quoting FED. R. CIV. P. 30(d) 1993 Advisory Committee’s Note).
“Because the plain language of Rule 30 is rather clear on what types of
objections counsel may make and when counsel may instruct a deponent not to answer
a question, courts have generally concluded that it is improper to instruct a witness not
to answer a question based on a relevancy objection. However, if counsel’s questions
go so far beyond the realm of possible relevance where the deposition is being
conducted in an abusive manner (i.e., in bad faith or in a manner that unreasonably
annoys, embarrasses, or oppresses the deponent or party), then it would be permissive
to instruct a deponent not to answer and move for a protective order under Rule
30(d)(3).” Id. at 591 (footnote and citations omitted).
“The only ground for [a Rule 30(d)(3)] motion to limit or terminate the deposition
is that it is being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.” Mayberry v. Wal-Mart La., LLC, Civ.
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A. No. 14-cv-478, 2015 WL 420284, at *3 (W.D. La. Jan. 29, 2015).
And Rule 30(d)(3)(A) expressly limits the timing for a Rule 30(d)(3) motion: “At
any time during a deposition, the deponent or a party may move to terminate or limit
it on the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party.” FED. R. CIV.
P. 30(d)(3)(A); see Mashiri v. Ocwen Loan Servicing, LLC, No. 12cv2838-L (MDD), 2014
WL 4608718, at *2 (S.D. Cal. Sept. 15, 2014) (“If counsel for Plaintiff believed that
counsel for Defendant was asking the same question repeatedly in bad faith or to
unreasonably annoy, embarrass or oppress Plaintiff, counsel’s option was to move to
terminate or limit the deposition under Rule 30(d)(3). Plaintiff’s current motion to
terminate the deposition is untimely for that purpose as Rule 30(d)(3) requires the
motion be made during the deposition.”); see also Redwood v. Dobson, 476 F.3d 462,
467-68 (7th Cir. 2007) (“Webber gave no reason beyond his declaration that the
questions were designed to harass rather than obtain information – which may well
have been their point, but Fed. R. Civ. P. 30(d) specifies how harassment is to be
handled. Counsel for the witness may halt the deposition and apply for a protective
order, see Rule 30(d)(4), but must not instruct the witness to remain silent. ‘Any
objection during a deposition must be stated concisely and in a non-argumentative and
non-suggestive manner. A person may instruct a deponent not to answer only when
necessary to preserve a privilege, to enforce a limitation directed by the court, or to
present a motion under Rule 30(d)(4).’ Fed. R. Civ. P. 30(d)(1). Webber violated this
rule repeatedly by telling Gerstein not to answer yet never presenting a motion for a
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protective order. The provocation was clear, but so was Webber’s violation.”).
Rule 30(d)(3) further provides that “[t]he motion may be filed in the court where
the action is pending or the deposition is being taken”; that, “[i]f the objecting deponent
or party so demands, the deposition must be suspended for the time necessary to obtain
an order”; that “[t]he court may order that the deposition be terminated or may limit
its scope and manner as provided in [Federal Rule of Civil Procedure] 26©”; that, “[i]f
terminated, the deposition may be resumed only by order of the court where the action
is pending”; and that Federal Rule of Civil Procedure “37(a)(5) applies to the award of
expenses” in connection with a Rule 30(d)(3) motion. FED. R. CIV. P. 30(d)(3)(A)-©.
Once a deponent has appeared for a deposition, Federal Rule of Civil Procedure
37(a)(3)(B)(i) governs a motion to compel a deponent to answer a question. See FED. R.
CIV. P. 37(a)(3)(B)(i) (“A party seeking discovery may move for an order compelling an
answer, designation, production, or inspection. This motion may be made if: (i) a
deponent fails to answer a question asked under Rule 30....”). And Rule 37(a)(2)
provides that “[a] motion for an order to a party must be made in the court where the
action is pending.” FED. R. CIV. P. 37(a)(2).
For Rule 37(a)(3)(B)’s purposes, “an evasive ... answer ... must be treated as a
failure to ... answer.” FED. R. CIV. P. 37(a)(4). Where an answer to a question at
deposition is evasive depends on the particular circumstances of the questioning. See,
e.g., Southern U.S. Trade Ass’n v. Guddh, 565 F. App’x 280, 281 (5th Cir. 2014)
(“Because Guddh remained in India, SUSTA agreed to conduct his deposition via
telephone. During the deposition, Guddh was (at the very least) evasive. Acting pro se,
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Guddh refused to answer routine questions such as where he attended college, refused
to answer relevant questions on the grounds that they were ‘overly broad,’ and claimed
that information such as his home address and whether he had sold a business were
‘privileged.’”); OrchestrateHR, Inc. v. Trombetta, 178 F. Supp. 3d. 476, 490-93 (N.D.
Tex. 2016), objections overruled, No. 3:13-cv-2110-KS, 2016 WL 5942223 (N.D. Tex.
Oct. 13, 2016); In re Pryor, 341 B.R. 571, 577 (Bankr. N.D. Miss. 2006) (“Pryor’s
responses at her deposition, taken only sixteen days after she had filed her voluntary
Chapter 7 petition and within three days before she executed her bankruptcy
Schedules and Statement of Affairs, could best be described as evasive. She had seen
her bankruptcy attorney on two occasions and had actually filed her petition, but she
never directly answered Safeway’s attorney as to whether she had filed a bankruptcy
case.”).
And Rule 37(a)(5) provides, in pertinent part, that, on a Rule 37(a)(3)(B)(i)
motion to compel an answer from a deponent, including a non-party:
•

“If the motion is granted ... the court must, after giving an opportunity to be
heard, require the ... deponent whose conduct necessitated the motion, the ...
attorney advising that conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees. But the court must not
order this payment if: (i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court action; (ii) the opposing
party’s nondisclosure, response, or objection was substantially justified; or (iii)
other circumstances make an award of expenses unjust.”

•

“If the motion is denied, the court may issue any protective order authorized
under Rule 26© and must, after giving an opportunity to be heard, require the
movant, the attorney filing the motion, or both to pay the party or deponent who
opposed the motion its reasonable expenses incurred in opposing the motion,
including attorney’s fees. But the court must not order this payment if the
motion was substantially justified or other circumstances make an award of
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expenses unjust.”
•

“If the motion is granted in part and denied in part, the court may issue any
protective order authorized under Rule 26© and may, after giving an
opportunity to be heard, apportion the reasonable expenses for the motion.”

FED. R. CIV. P. 37(a)(5)(A)-(C).
Federal Rule of Civil Procedure 30(d)(2) provides that “[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.” FED. R. CIV. P. 30(d)(2). “The meaning of ‘appropriate
sanction’ in Rule 30(d)(2) has been broadly interpreted as [t]he full scope of sanctions
available under Rule 30(d)(2) is not expressly described in the text of the rule. Many
courts have construed Rule 30(d)(2) to apply to circumstances where a party’s conduct
at a deposition warranted remedial action.” Murillo Modular Group, Ltd. v. Sullivan,
No. 3:13-cv-3020-M, 2016 WL 6139096, at *7 (N.D. Tex. Oct. 20, 2016) (internal
quotation marks omitted)
“The broad scope of appropriate sanctions under Rule 30(d)(2) includes, where
appropriate, an award of expenses associated with a deposition’s continuation that is
necessitated by a [person’s] conduct that impedes, delays, or frustrates the fair
examination of the deponent.” Nieman v. Hale, No. 3:12-cv-2433-L-BN, 2014 WL
4375669, at *5 (N.D. Tex. Sept. 4, 2014). The movant bears the burden on any Rule
30(d)(2) motion that it makes. See Kleppinger v. Tex. Dep’t of Transp., 283 F.R.D. 330,
333 (S.D. Tex. 2012).

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Analysis
I.

Mr. Kasparov’s alleged non-responsiveness during his deposition
Under Rule 37(a)(3)(B)(i), the Court may compel answers to depositions

questions where a deponent fails to answer a question asked under Rule 30. FED. R.
CIV. P. 37(a)(3)(B)(i). And “an evasive or incomplete ... answer ... must be treated as a
failure to ... answer.” FED. R. CIV. P. 37(a)(4).
Defendants assert that “[c]ourts have repeatedly compelled follow-up depositions
or imposed other sanctions when a deponent repeatedly failed to answer questions and
gave non-responsive, evasive answers” and that, “[h]ere, most of the time allowed
under the Rules for the deposition was consumed with attempting to unravel Plaintiff’s
non-responsive, evasive answers that were intentionally designed to make the
deposition unusable.” Dkt. No. 172 at 20, 21. Defendants contend that their “counsel
was forced to ask questions at least twice – and as many as seven times” – and that,
“[o]n many such occasions, defense counsel never obtained a responsive answer to the
question asked.” Id. at 21. According to Defendants, “[b]y refusing to give responsive
answers, Plaintiff wasted as much as 2/3 of the time allowed for a deposition under the
Federal Rules.” Id.
Mr. Kasparov responds that,
[a]s admitted by counsel for Defendants in their portion of this Joint
Status Report, at p. 25, “As explained above, defense counsel was forced
to ask questions at least twice – and as many as seven times. See Chart
Detailing Non-Responsive Answers, attached as Ex. B (App. at 104-108);
see also Kasparov Dep. at pages cited in Ex. B.” But Mr. Kasparov did
give responsive Answers which included all “responsive information”
known to him to counsel’s questions and he in no way wasted 2/3 of the
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length of the deposition as has been represented by Defendants’ counsel.
With no Judge present, Defendants’ counsel was obligated to accept those
Answers and move on, and his conduct was improper and he wasted time
when he refused to move on and instead insisted on harassing Mr.
Kasparov with repeat questions that Mr. Kasparov had already answered
to the best of his ability. If Plaintiff’s counsel had not put a stop to such
behavior one wonders how much longer Defendants’ counsel would have
persisted with such conduct. The alternative, the relatively extreme
measure of halting the deposition in order to file a motion for a protective
order and/or sanctions would not have been “proportionate” nor within
the spirit or the letter of the Federal Rules of Procedure as expressed in
Rule 1, FRCP, the advisory committee’s comments to it, or this Court’s
Standing Order On Discovery.
Id. at 31-33 (footnotes omitted).
The Court has reviewed the entire deposition transcript. Mr. Kasparov
frequently did not provide a “yes” or “no” answer the first time that a question was
asked even if it could have been so answered. He often volunteered additional
information and provided his own explanation as to the relevance or materiality of his
answer to Defendants’ counsel question or to tell his side of the story, so to speak. As
Mr. Kasparov explains in response to the MTC, “[o]n at least ten occasions during Mr.
Kasparov’s deposition, [Plaintiff’s counsel] stated on the record to Mr. Kasparov he
should listen to [Defendants’ counsel’s] questions and just answer his question.” Dkt.
No. 172 at 41.
In short, Mr. Kasparov was hardly the witness a questioning attorney would
wish for, but he answered questions as one might expect of an inexperienced witness
who is a party to the dispute at issue.
Defendant’s counsel objected to Mr. Kasparov’s answers as non-responsive, by
Defendants’ count, on over 100 occasions. See Dkt. No. 172 at 8-9. And Defendants
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contend that, “[t]hroughout the course of the deposition, Plaintiff refused to give
responsive answers to even the most simple questions” and that Defendants’ “counsel
was forced to ask questions at least twice – and as many as seven times.” Id. at 21
(emphasis removed). According to Defendants, “”[o]n many such occasions, defense
counsel never obtained a responsive answer to the question asked.” Id. (citing Dkt. No.
173, Defs.’ Ex. A, at 39:24-41:1, 50:10-25, 80:18-83:9, 83:10-84:16, 84:17-85:8, 89:5-20,
115:1-23, 135:2-20, 137:11-138:2, 143:24-145:4, 287:25-290:5, 295:21-297:4, 341:8-21,
366:8-368:21, 381:18-383:2).
In response, Mr. Kasparov laments “Defendants’ counsel’s seeming obsession
with asking questions over and over again until he believes he has a ‘clean answer,’
presumably because he believed that somehow he was entitled to have a ‘clean’ record
because he was conducting a ‘trial deposition’ and not a discovery deposition.” Id. at 34
(footnote omitted). Mr. Kasparov complains that, using one example, “[a]t a minimum
Defendants’ counsel should have refrained from repetitiously and in a hostile manner
asking Mr. Kasparov the same question time after time” and “also should have pointed
out which part of Mr. Kasparov’s answers he thought were unresponsive inasmuch as
Mr. Kasparov’s answers ‘Yeah’…‘Yes’ and …‘Correct’ each time the question was asked
were virtually identical and inarguably responsive to the question each time. Instead
of identifying the portion of answers that were given in explanation by Mr. Kasparov
of those one word answers as unresponsive and/or moving to strike only those portions,
[Defendants’ counsel] [mischaracterized the entirety of each of the answers Mr.
Kasparov gave as unresponsive....” Id. at 38.
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The Court cannot agree that Defendants’ counsel cross the line in asking
questions multiple times if counsel believes the witness has not given a responsive
answer. As another court has observed, “depositions have more flexibility than
interrogatories because they permit an attorney to ask follow-up questions based on
answers to previous questions or repeat questions if a deponent is being evasive.”
Kleppinger, 283 F.R.D. at 335.
And the provision in the Standing Order on Discovery that “[t]he party
propounding discovery should not persist in opposing any objections if the responding
party has produced or provided all responsive information and documents” does not
change this. Dkt. No. 138 at 4. As discussed more fully above and below, if the
defending counsel believes that the questioning counsel is conducting a deposition in
bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the
deponent, Rule 30(d)(3) provides a mechanism for the defending counsel to address
that concern.
Neither is Defendants’ counsel’s focus on possibly using the deposition testimony
at trial, for example, for impeachment, improper or misplaced. The Federal Rules
anticipate that use and do not contemplate, as a general matter, a second, “trial
deposition” of each party or witness. See FED. R. CIV. P. 32.
At the same time, a non-responsiveness objection also preserved Defendants’
ability – if deposition testimony is needed for use at, for instance, summary judgment
or trial – to seek a ruling on those objections, including requesting that the Court
strike the non-responsive portion of answers. The Court has reviewed each instance
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in which Defendants contend that their counsel never obtained a responsive answer
to the question asked, and the Court cannot agree with their assessment. Except for
some instances discussed below in which he was instructed not to answer, Mr.
Kasparov gave responsive answers to these questions, notwithstanding whatever
complaints Defendants may have preserved about the manner in which he did so –
which, again, Defendants can ask the Court to address at a later time based on their
objections, if necessary.
Based on the Courts review of the transcript, the Court finds that Mr. Kasparov
did not give evasive answers that amount to a failure to answer deposition questions
at all and did not impede, delay, or frustrate his fair examination in a manner that
warrants Rule 30(d)(2) sanctions. The Court determines that ordering Mr. Kasparov
to reappear for another deposition is not warranted under Rules 30(d)(2) or 37(a)(3)(B).
II.

Plaintiff’s counsel’s objections to “form”
Mr. Kasparov’s deposition was taken pursuant to Rule 30, under which “[a]n

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,” FED. R. CIV. P. 30(c)(2); under which “[a]n objection must be stated concisely
in a nonargumentative and nonsuggestive manner,” id.; and under which “[a]n
objection to an error or irregularity at an oral examination is waived if: (i) it relates to
... the form of a question or answer, ... a party’s conduct, or other matters that might
have been corrected at that time; and (ii) it is not timely made during the deposition,”
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FED. R. CIV. P. 32(d)(3)(B). Judges, except in the rarest of circumstances, are not
present during depositions and do not, except in even rarer circumstances, rule on
objections during a deposition as it proceeds.
Defendants argue that “Plaintiff’s counsel’s boilerplate objections to ‘form’ were
legally improper and exacerbated Plaintiff’s non-responsiveness during the deposition.”
Dkt. No. 172 at 22. Defendants report that “Plaintiff’s counsel’s repeated, boilerplate
objections to ‘form’ were made without stating the basis for the objection” and note
that, “[a]lthough the Fifth Circuit has not decided whether blanket ‘form’ objections are
proper under the Federal Rules of Civil Procedure, in the absence of a local rule
addressing such objections, the vast majority of courts to have considered the issue find
that such objections are improper and are insufficient to preserve error.” Id. at 22, 24
(footnote omitted). According to Defendants, “Plaintiff’s counsel’s repeated, boilerplate
objections to ‘form’ were made without stating the basis for the objection” and “were
designed to impede Defendants’ ability to obtain necessary information and
exacerbated Plaintiff’s non-responsiveness.” Id. at 24-25. Defendants further explain
that “Plaintiff’s counsel encouraged [Mr. Kasparov]’s conduct by objecting to the ‘form’
of questions without providing any legal basis for his objection, as required,” and Mr.
Kasparov “then gave excessively evasive answers to questions to which his lawyer
objected.” Id. at 14.
Defendants argue that “Plaintiff’s counsel’s improper conduct during the
deposition provides an additional reason to require Plaintiff to reappear for a second
deposition in Dallas, Texas,” in connection with which “Defendants respectfully request
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that the Court instruct Plaintiff’s counsel to state the basis of his objection in a
succinct, non-suggestive manner at the second deposition and to refrain from
influencing Plaintiff’s responsiveness with repeated, improper ‘form’ objections.” Id. at
24-25.
Mr. Kasparov acknowledges that his “counsel’s objections to form were almost
entirely strictly limited to the exact words ‘objection to form,’ nothing more.” Dkt. No.
172 at 41. Mr. Kasparov responds that his counsel’s objecting to “form” was proper and
followed the majority view, see id. at 44, but Mr. Kasparov has also now provided
specific grounds for objections to “form” that he made during the depositions, see Dkt.
No. 173 at 135-40 of 146.
Objecting without stating a sufficient ground may mean that an objection is
waived if it relates to the form of a question or another matter might have been
corrected at the time of questioning. There is no basis or need to rule, one by one, on
the validity or waiver of those objections at this time or to resolve the question of
whether blanket “form” objections at depositions are proper under the Federal Rules.
The only issue on Defendants’ MTC is whether Plaintiff’s counsel’s objections to “form”
impeded, delayed, or frustrated the fair examination of Mr. Kasparov and warrant an
appropriate sanction under Rule 30(d)(2).
In that regard, Mr. Kasparov asserts that his counsel did not obstruct the
deposition and, “to the contrary,” “[o]n at least ten occasions during Mr. Kasparov’s
deposition, [Plaintiff’s counsel] stated on the record to Mr. Kasparov he should listen
to [Defendants’ counsel’s] questions and just answer his question.” Dkt. No. 172 at 41.
-17-

And Mr. Kasparov points out that “Defendants’ counsel never once during the entirety
of the deposition asked for further elaboration from Plaintiff’s counsel regarding any
of his ‘objections to form’” and that “Defendants’ counsel never once during the entirety
of the deposition skipped a beat in his questioning of the witness to make a single
objection to Plaintiff’s counsel’s objections to form and neither did the Plaintiff himself
hesitate to answer his questions quickly and without hesitation.” Id. at 41, 42
(footnotes omitted). According to Mr. Kasparov, “[i]n short Defendant’s counsel never
reacted at all on or off the record to Plaintiff’s attorney making his objections to form”
but now claims “that Plaintiff’s attorney was coaching Mr. Kasparov through his
objections to form, as though the use of the words ‘objection to form’ were a type of dog
whistle19 which would set Mr. Kasparov off on some type of rant. If Plaintiff’s attorney
were able to somehow coach Mr. Kasparov by saying ‘objection to form’ then there
should be some evidence in the 386 pages of transcript accumulated over a period of
seven hours which would point to such a feat, but there is none.” Id. at 42.
Based on the Court’s reviewed of the deposition transcript, the Court finds that
Plaintiff’s counsel’s objections to “form” did not so impede, delay, or frustrate Mr.
Kasparov’s fair examination as to warrant any sanction under Rule 30(d)(2) and that
Plaintiff’s counsel did not engage in improper witness coaching during the deposition.
That Defendants’ counsel did not address Plaintiff’s counsel’s “form” objections
at or during the deposition does not necessarily mean that Defendants have waived
any waiver of the objections, but it does diminish the force of Defendants’ assertion
that “Plaintiff’s counsel exacerbate[d] Plaintiff’s non-responsiveness and cue[d] him to
-18-

be evasive by repeatedly objecting to the ‘form’ of the question.” Dkt. No. 172 at 12. In
fact, based on the Court’s review, Plaintiff’s counsel and Defendants’ counsel were at
odds when Plaintiff’s counsel said more, not less, in objecting during the deposition.
Plaintiff’s counsel objected as he did with a risk of possible waiver under Rule
32(d)(3)(B). And, if the Court is ever required to address the objections to particular
questions and answers in connection with attempted use of the deposition testimony
at, for instance, summary judgment or trial, the Court may find that at least some of
the objections are waived or are invalid or not well-taken.
But, on this MTC, the Court determines neither the manner in which or the
frequency with which Plaintiff’s counsel objected to “form” during the deposition
warrant Rule 30(d)(2) sanctions, including ordering a renewed deposition of Mr.
Kasparov.
III.

Plaintiff’s counsel’s instructions that Mr. Kasparov not answer certain questions
A.

Instructions not to answer based on marital-communications privilege

Plaintiff’s counsel instructed Mr. Kasparov not to answer certain questions
based on a state-law marital-communications privilege. Defendants explain that, on
17 occasions, counsel instructed him not to answer “on the basis of the
marital-communications privilege; however, the questions related to facts regarding
Plaintiff’s ex-wife or communications with Plaintiff’s ex-wife after she and Plaintiff
divorced,” and “[t]he questions did not seek information regarding communications
between Plaintiff and his ex-wife during their marriage.” Dkt. No. 172 at 25 (emphasis
removed). And Defendants maintain that “questions about Plaintiff’s ex-wife are
-19-

indisputably relevant to Plaintiff’s claim that Ambit improperly terminated Plaintiff’s
position as a consultant, because Ambit terminated that position due to Plaintiff’s
ex-wife’s involvement with a competitor (and Plaintiff’s indisputable assistance in
helping her to do so).” Id. at 26.
The parties agree that because this is a diversity case, the availability of a
privilege is governed by the law of the forum state. See id. at 26 (citing Int’l Ins. Co. v.
RSR Corp., 426 F.3d 281, 299 n.26 (5th Cir. 2005)), 48 & n.24 (citing Miller v.
Transamerican Press, 621 F.2d 721, 724 (5th Cir. 1980)).
According to Defendants,
[u]nder Texas law, the marital-communications privilege is a narrow
privilege that is limited “confidential communications between spouses.”
Marshall v. Ryder Sys., Inc., 928 S.W.2d 190, 195 (Tex. App. – Houston
[14th Dist.] 1996, writ denied) (first emphasis in original). Testimony that
refers to acts, as opposed to communications, are not privileged. Weaver
v. State, 855 S.W.2d 116, 121 (Tex. App. – Houston [14th Dist.] 1993, no
writ) (“The marital communication privilege applies to utterances and not
to acts.”).
Here, because all of the questions to which Plaintiff’s counsel
instructed Plaintiff not to answer were directed toward facts – such as
where Plaintiff’s ex-wife lived – or were inquiries regarding
communications they had after they were divorced, those communications
are not covered by the marital-communications privilege. See id.;
Marshall, 928 S.W.2d at 195 (noting that the marital-communications
privilege applies to communications “between spouses”). Thus, all of the
questions to which Plaintiff’s counsel instructed his client not to answer
on the basis of the marital-communications privilege were not, as a
matter of well-established law, protected by the marital-communications
privilege. The Court should compel Plaintiff to answer such questions
during a second deposition.
Id. at 26.
But Mr. Kasparov responds that, “[o]f the ‘21' instructions not to answer that
-20-

Defendants’ counsel now objects to, the number should be sixteen instructions not to
answer which requested privileged information under the laws of Florida marital
privilege, as two (not three) were concerning hostile and harassing repetitious
questioning as Plaintiff’s counsel has discussed above, and one was simply an objection
to form without any instruction not to answer and two others were answered by Mr.
Kasparov before the instruction was given to him.” Id. at 50.
And, as to the privilege-based instructions not to answer, Mr. Kasparov asserts
that
the law of Texas calls for a choice of law analysis under these
circumstances due to the importance of Texas’ and Florida’s laws relating
to the marital privilege. Plaintiff disagrees with Defendants’ position that
Texas law should be applied in the context of this discovery dispute.
In Manufacturers Collection Company LLC v. Precision Airmotive
LLC, 3:12-CV-0853-L, (Memorandum of Opinion and Order of Judge
Lindsay, District Court Judge, N.D. Tex. June 1, 2015), unpublished,
Judge Lindsay discussed the process of just such a choice-of-law analysis
at length and determined in that case that Texas had little if any interest
in the particular “dispute” involved, and therefore applied Pennsylvania
law instead of Texas law.
Here the questions of marital privilege justifying an instruction
and subsequent refusal to answer questions surround the circumstances
of the marriage between Plaintiff and his ex-wife, Maria, neither of whom
has ever resided in Texas. They resided in Florida since marrying in 2008
until divorcing in 2012, after separating in 2011. See, 12:1-8, and 17:21–
18:18 (App. at 5-6). Since the Texas marital privilege, as described by
Defendants above in their portion of this JSR is much narrower than the
Florida marital privilege, there is indeed a conflict of the two states’
marital privilege laws, and Florida has a much greater interest in and
infinitely more contacts with the Kasparovs and their marriage, the
Florida marital privilege must be applied on the issue of the propriety of
the 16 instructions not to answer questions by Plaintiff’s counsel based
on the marital privilege.
Id. at 48-49 (footnote omitted).
-21-

Defendants reply that,
[w]ithout contesting whether Texas or Florida law applies, it is clear that,
under either state’s law, the marital-communications privilege applies
only to “communications” and not to acts. See Marshall v. Ryder Sys.,
Inc., 928 S.W.2d 190, 195 (Tex. App. – Houston [14th Dist.] 1996, writ
denied); State v. Norris, 352 So. 2d 875, 877 (Fla. Ct. App. 1977).
Plaintiff’s attempt to rely on a case from 1898 to support his argument
that the marital privilege is broader in Florida than in Texas should be
rejected, since that case was decided 78 years before the Florida
marital-communications statute was enacted in Florida. See Fl. Stat.
Ann. § 90.504 (codified in 1976).
Id. at 26. That is, Defendants take the position that, as to the testimony at issue here,
the two states’ laws are substantially the same, and there is no need to undertake a
choice-of-law analysis. See Schneider Nat’l Transp. v. Ford Motor Co., 280 F.3d 532,
536 (5th Cir. 2002) (“If the laws of the states do not conflict, then no choice-of-law
analysis is necessary.”).
In a diversity action raising only state law claims, the Court must apply the
state law of attorney-client privilege. See FED. R. EVID. 501 (“The common law – as
interpreted by United States courts in the light of reason and experience – governs a
claim of privilege unless any of the following provides otherwise: the United States
Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil
case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of decision.”). But, as another court in this circuit recently explained,
[a]s Magistrate Judge Bourgeois of the Middle District of Louisiana has
cogently stated: “Rule 501 is silent ... regarding how the court must
determine the ‘state law’ governing privileges.” Shaw Group, Inc. v.
Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 1784046, at *7 (M.D.
La. May 5, 2014) (Bourgeois, M.J.).
Lead commentators have discussed three approaches for
-22-

interpreting Rule 501 when faced with a horizontal choice
of law issue: “(1) [a]ssume that the state “which supplies the
rule of decision” is the state which also supplies the
privilege law; (2) apply the privilege rules of the state in
which the federal court sits; or (3) apply the conflict of law
doctrine of the state in which the federal court sits.” KL
Grp. v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987)
(citing Charles Alan Wright & Kenneth W. Graham, Jr.,
Federal Practice and Procedure, § 5435, 865-69 (1980)). The
Fifth Circuit has endorsed the third approach to Rule 501,
which requires the court to apply the choice-of-law rules of
the forum state to determine the governing law for
attorney-client privilege. See Miller v. Transamerican Press,
Inc., 621 F.2d 721, 724, opinion supplemented on denial of
reh’g, 628 F.2d 932 (5th Cir. 1980). This approach is
consistent with the Erie doctrine, which requires federal
courts sitting in diversity to apply the forum state’s
substantive law, including its choice-of-law rules. See
Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 495-96
(1941).
Id.; see Plotkin v. N. River Ins. Co., No. 12-1077, 2012 WL 2179103, at
*4-5 (E.D. La. June 12, 2012) (Knowles, M.J.) (applying forum state’s
choice of law rules to decide which state’s privilege law applies when
there is a conflict between the forum state’s privilege law and that of the
state that supplies the substantive rule of decision).
In a footnote, however, with particular significance to the issue in
the instant case, Magistrate Judge Bourgeois pointed out:
Several decisions in the Fifth Circuit appear to endorse the
first approach to Rule 501 in the absence of any clear need
to conduct a choice-of-law analysis. See, e.g., Dunn v. State
Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991)
(“Since [Mississippi] state law provides the rule of decision,
Mississippi law is determinative of the attorney client
privilege.”). In fact, this court has applied the first approach
in resolving a motion to quash a deposition filed by Zurich
where there was no clear choice of law issue. (See R. Doc.
234 at 4, n. 3). Some courts have explicitly endorsed the first
approach to Rule 501, however, where the substantive law
has already been determined through choice-of-law
principles. See, e.g., United States Sur. Co. v. Stevens
Family Ltd. P’ship, No. 11 C 7480, 2014 WL 902893 (N.D.
Ill. Mar. 7, 2014) (“Once the court has, by applying
appropriate choice of law principles, determined the
-23-

substantive law applicable to a claim based on state law, the
privilege issues are determined by that same state’s law.”).
Shaw Group, 2014 WL 1784046, at *7 n.10.
Benson v. Rosenthal, Civ. A. No. 15-782, 2016 WL 3001129, at *2-*3 (E.D. La. May 25,
2016).
The parties agree that, if the Court must engage in any choice-of-law analysis,
it should apply Texas’s choice-of-law rules. See generally Atl. Mar. Const. Co., Inc. v.
U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 582 (2013) (explaining that “”[a]
federal court sitting in diversity ordinarily must follow the choice-of-law rules of the
State in which it sits” and that, “when a party bound by a forum-selection clause flouts
its contractual obligation and files suit in a different forum, a § 1404(a) transfer of
venue will not carry with it the original venue’s choice-of-law rules” (citing Klaxon, 313
U.S. at 494-96)).
Texas courts utilize the “most significant relationship” test to determine which
state’s law applies to a particular substantive issue. See Coghlan v. Wellcraft Mar.
Corp., 240 F.3d 449, 452 n.2 (5th Cir. 2001) (citing Duncan v. Cessna Aircraft Co., 665
S.W.2d 414, 421 (Tex. 1984)). This test is based on the Restatement (Second) of Conflict
of Laws and utilizes a multi-factor methodology to determine which state has the most
significant relationship to the substantive issues involved in a dispute. See Duncan,
665 S.W.2d at 421. “The choice of law is evaluated issue by issue.” Casa Orlando
Apartments, Ltd. v. Federal Nat’l Mortg. Ass’n, 624 F.3d 185, 191 (5th Cir. 2010).
“Section 6 of the Restatement lists the general factors that should inform a choice of
law question: (a) the needs of the interstate and international systems, (b) the relevant
-24-

policies of the forum, © the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue, (d) the protection
of justified expectations, (e) the basic policies underlying the particular field of law, (f)
certainty, predictability and uniformity of result, and (g) ease in the determination and
application of the law to be applied.” Id.
Deciding which state’s laws should govern an issue “is a question of law for the
court to decide.” Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202, 204 (Tex. 2000)
(citing Duncan, 665 S.W.2d at 421); see also McKinney BB v. U.S. Realty Advisors,
LLC, No. 01-11483, 2003 U.S. App. LEXIS 28011, at *18 (5th Cir. Jan. 24, 2003) (“[T]he
question of which state’s law to apply is a question of law.”); Janvey v. Suarez, No.
3:10-cv-2581-N, 2013 WL 5663107, at *3 (N.D. Tex. Oct. 17, 2013). But this legal
determination involves a factual inquiry. See Hughes Wood Products, 18 S.W.3d at 204;
Janvey, 2013 WL 5663107, at *3. That is, “the party urging application of another
state’s substantive law [must] furnish the Court with ‘sufficient information’ to
establish that the law of another state applies.” Janvey v. Alguire, 846 F. Supp. 2d 662,
671 (N.D. Tex. 2011) (quoting Holden v. Capri Lighting, Inc., 960 S.W.2d 831, 833 (Tex.
App. – Amarillo 1997, no pet.)) (internal quotations omitted). Absent such sufficient
information, “‘the failure to provide adequate proof of choice of law ... results in a
presumption that the law of the foreign jurisdiction is identical to the law of Texas.’”
Id. (quoting Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 769 (Tex. App. –
Corpus Christi 1999, pet. denied)) (internal brackets omitted).
And “Texas courts initially determine whether there is a conflict between Texas
-25-

law and the other potentially applicable law.” Bailey v. Shell Western E&P, Inc., 609
F.3d 710, 722 (5th Cir. 2010). “Where there are no differences between the relevant
substantive laws of the respective states, there is no conflict, and a court need not
undertake a choice of law analysis.” R.R. Mgmt. Co., L.L.C. v. CFS La. Midstream Co.,
428 F.3d 214, 222 (5th Cir. 2005).
Defendants’ counsel’s questions to Mr. Kasparov that Defendants raise as ones
to which his counsel improperly instructed him not to answer on privilege grounds are
as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

Dkt. No. 173, Defs.’ Ex. A, at 18:24-19:1-2: “So you mentioned that your ex-wife
left you. When did she leave you?”
Id. at 19:3-6: “Can you tell me what period of time you and your ex-wife Maria
were living together, sir?”
Id. at 19:19-20:1-2: “When your ex-wife did leave you, did she live somewhere
besides the condo that you own in Jacksonville, Florida, and the apartment
where you were living in Brooklyn?”
Id. at 21:5-14: “So my question is, when your wife left you in 2011, did she go to
live some place other than the condo that you own in Jacksonville, Florida, and
the apartment that you were renting in Brooklyn, New York?”
Id. at 21:17-20: “Can you tell me in what month in 2011 your wife left you?”
Id. at 21:23-22:1: “Can you tell me what months in 2011 you and your wife were
living together in the same household?”
Id. at 22:4-7: “Do you know where your ex-wife Maria is living now?”
Id. at 22:10-16: “So you’re not even going to tell me if you know where she’s
living now?”
Id. at 23:6-9: “When is the last time you’ve had any communication with your
ex-wife Maria?”
Id. at 23:15-16: “Have you ever had any discussions with your ex-wife Maria
about this lawsuit since you became divorced?”
Id. at 316:21-24: “Have you ever discussed with her whether she registered as
a consultant for Ampegy?”
Id. at 318:14-19: “Did you ever have any discussions with your second ex-wife
about whether or not she registered as a consultant with Ampegy?”
Id. at 319:25-320:1: “Do you know what business Ampegy is in?”
Id. at 330:18-331:4: “Sir, the email address that’s listed on the document under
[e-mail], that is an email address that you say that your wife
-26-

15.

16.
17.

at the time had created for you, correct?”
Id. at 352:25-353:5: “When this issue came up and you received a call from Mr.
Starkweather, did you contact Myahri Kasparov to ask her if it was true? I’m
not asking you about the conversation, but did you contact her to ask her if it
was true?”
Id. at 361:19-23: “And my question is, June of 2012, is that consistent with your
recollection as to the date when the divorce proceeding in New York was filed?”
Id. at 371:19-12: “I thought your wife had left you by that point –“
With the subject of the dispute in mind, the Court turns to whether there is an

actual substantive conflict between Texas law and Florida law as applied to the
privilege invoked as to these questions.
The Supreme Court of Florida recently explained that “Section 90.504(1), Florida
Statutes (2007), provides that ‘[a] spouse has a privilege during and after the marital
relationship to refuse to disclose, and to prevent another from disclosing,
communications which were intended to be made in confidence between spouses while
they were husband and wife.’” Hernandez v. State, 180 So.3d 978, 998 (Fla. 2015)
(emphasis removed).
According to the Florida Supreme Court, Section 90.504 codified “the
confidential marital-communications privilege,” which, “despite the fact that [the
Florida Supreme Court will] broadly construe this privilege to protect spousal
confidences, ... only applies to communications that were originally intended to be
confidential.” Lynch v. State, 2 So.3d 47, 65 (Fla. 2008) (emphasis and footnote omitted)
(citing Jackson v. State, 603 So.2d 670, 671 (Fla. 4th DCA 1992) (“There is a strong
public policy supporting the marital privilege. The courts will not engage in an
after-the-fact analysis of whether a statement is ‘incidental to’ or ‘because of’ the
-27-

marital relationship, because a married couple, and each of them, should be secure in
the knowledge that their private communications are exactly that – private.” (citation
omitted))). The Florida marital-communications privilege “does not apply to
observations made by [one] spouse” of the other and “only applies to confidential
communications,” Bolin v. State, 117 So.3d 728, 736 (Fla. 2013) (internal quotation
marks omitted), “not to acts which are in no way communications,” Kaczmar v. State,
104 So.3d 990, 999 (Fla. 2012) (“ Because these were observations of her husband’s
actions rather than communications between them, privilege does not apply to this
testimony.”).
And Section 90.507, Florida Statutes (2007), provides that “[a] person who has
a privilege against the disclosure of a confidential matter or communication waives the
privilege if the person, or the person’s predecessor while holder of the privilege,
voluntarily discloses or makes the communication when he or she does not have a
reasonable expectation of privacy, or consents to disclosure of, any significant part of
the matter or communication. This section is not applicable when the disclosure is
itself a privileged communication.” Accordingly, “the marital privilege does not apply
if the statement was knowingly made in [third parties’] presence without any
reasonable expectation of privacy or intent that the statement be made only to the
spouse.” Hernandez, 180 So.3d at 998. “Therefore, for a marital communication to be
protected, the court must determine the couple had a reasonable expectation of privacy
at the time the communication took place.” Boyd v. State, 17 So.3d 812, 817 (Fla. 4th
DCA 2009).
-28-

The Court cannot accept Mr. Kasparov’s reliance on Mercer v. State, 24 So. 154
(Fla. 1898), to attempt to extend the privilege beyond confidential communications
between spouses in the face of Florida’s codification of the confidential
marital-communications privilege and the Florida Supreme Court’s more recent case
law describing its parameters and limitations.
Under Texas Rule of Evidence 504(a)(2), “[a] person has a privilege to refuse to
disclose and to prevent any other person from disclosing a confidential communication
made to the person’s spouse while they were married. This privilege survives
termination of the marriage.” TEX. R. EVID. 504(a)(2). “A communication is
‘confidential’ if a person makes it privately to the person’s spouse and does not intend
its disclosure to any other person.” TEX. R. EVID. 504(a)(1). Like the Florida Supreme
Court, Texas courts will narrowly construe any exception to the privilege where “the
societal interest to be protected by the marital communication privilege ... is the
institution of marriage.” Ludwig v. State, 931 S.W.2d 239, 242 (Tex. Crim. App. 1996).
But, under Texas law, “[t]he marital communication privilege applies to utterances and
not to acts.” Weaver v. State, 855 S.W.2d 116, 121 (Tex. App. – Houston [14th Dist.]
1993, no writ).
Based on the Court’s review of the governing law, there is no actual substantive
conflict between Texas law and Florida law as to the marital-communications privilege
as applied to the deposition questions at issue here.
Under either Texas or Florida law, the marital-communications privilege does
not apply to questions asking about acts and not communications or acts which are in
-29-

no way communications, which includes the fact and timing of Mr. Kasparov’s wife’s
leaving him and the periods of time in which Mr. Kasparov and his wife were living
together. See Dkt. No. 173, Defs.’ Ex. A, at 18:24-19:1-2 (“So you mentioned that your
ex-wife left you. When did she leave you?”); id. at 19:3-6 (“Can you tell me what period
of time you and your ex-wife Maria were living together, sir?”); id. at 21:17-20 (“Can
you tell me in what month in 2011 your wife left you?”); id. at 21:23-22:1 (“Can you tell
me what months in 2011 you and your wife were living together in the same
household?”); id. at 330:18-331:4 (“Sir, the email address that’s listed on the document
under [e-mail], that is an email address that you say that your wife
at the time had created for you, correct?”); id. at 361:19-23 (“And my question is, June
of 2012, is that consistent with your recollection as to the date when the divorce
proceeding in New York was filed?”); id. at 371:9-12 (“I thought your wife had left you
by that point –“).
Likewise, the privilege does not apply to questions about where Mr. Kasparov’s
wife lived, either while they were married or – even if it is based on communications
between them after they were divorced in 2012 – after their marriage ended. See id.
at 19:19-20:1-2 (“When your ex-wife did leave you, did she live somewhere besides the
condo that you own in Jacksonville, Florida, and the apartment where you were living
in Brooklyn?”); id. at 21:5-14 (“So my question is, when your wife left you in 2011, did
she go to live some place other than the condo that you own in Jacksonville, Florida,
and the apartment that you were renting in Brooklyn, New York?”); id. at 22:4-7 (“Do
you know where your ex-wife Maria is living now?”); id. at 22:10-16 (“So you’re not
-30-

even going to tell me if you know where she’s living now?”).
Questions asking about Mr. Kasparov’s post-divorce communications with his
ex-wife are not covered by the privilege as codified in both Texas and Florida. See id.
at 23:6-9 (“When is the last time you’ve had any communication with your ex-wife
Maria?”); id. at 23:15-16 (“Have you ever had any discussions with your ex-wife Maria
about this lawsuit since you became divorced?”).
Some questions could have called for both pre- and post-divorce communications
and could only be privileged as to confidential communications during marriage. See
id. at 316:21-24 (“Have you ever discussed with her whether she registered as a
consultant for Ampegy?”); id. at 318:14-19 (“Did you ever have any discussions with
your second ex-wife about whether or not she registered as a consultant with
Ampegy?”). Plaintiff’s counsel’s instructions not to answer and invocation of privilege
were proper only insofar as Mr. Kasparov was not required to reveal confidential
communications with his ex-wife that occurred while they were married.
One question did expressly ask about any conversation between Mr. Kasparov
and his wife during their marriage, but, even if Plaintiff’s counsel properly invoked the
privilege and instructed Mr. Kasparov not to answer, Mr. Kasparov still answered the
question. See id. at 352:25-353:5 (“When this issue came up and you received a call
from Mr. Starkweather, did you contact Myahri Kasparov to ask her if it was true? I’m
not asking you about the conversation, but did you contact her to ask her if it was true?
.... I never talk with her. I never found her. .... She change telephone.”). Mr. Kasparov
acknowledges that there is no invocation of privilege to determine in that instance
-31-

where the “answer [was] given by [him] despite [an] instruction not to answer on basis
of marital privilege.” Dkt. No. 173 at 143 of 146.
Similarly, Plaintiff’s counsel did not instruct Mr. Kasparov not to answer the
question at “Do you know what business Ampegy is in?” Dkt. No. 173, Defs.’ Ex. A, at
319:25-320:1. Rather, “this was an objection to the form of the question, not the raising
of a privilege – no instruction not to answer was given to Mr. Kasparov.” Dkt. No. 173
at 143 of 146. And Mr. Kasparov did answer the question. See Dkt. No. 173, Defs.’ Ex.
A, at 320:2-7.
To permit Defendants to obtain an answer to these questions as to which
Plaintiff’s counsel’s instruction not to answer and invocation of the maritalcommunications privilege is overruled, the Court determines that the appropriate
remedy is to order Mr. Kasparov to submit to a deposition on written questions under
Federal Rule of Civil Procedure 31 limited to the questions itemized above as Numbers
1-12, 14, 16, and 17 as to which, in whole or in part, the marital-communications
privilege does not apply and no answer was given.
Finally, the Court will not, as Mr. Kasparov requests, on a discovery motion,
rule on the merits of the substantive issue of whether Ambit’s Policies and Procedures
incorporated into the Independent Consultant Contract were illusory or otherwise
invalid. Federal Rule of Civil Procedure 26(b)(1) provides that, "[u]nless otherwise
limited by court order,” “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs
of the case.” FED. R. CIV. P. 26(b)(1); accord Lopez v. Warren Transport, Inc., No.
-32-

3:16-cv-2755-G-BN, 2017 WL 551680, at *6 (N.D. Tex. Feb. 10, 2017) (finding that
request “seek discovery that is relevant to Plaintiffs’ claims as pleaded – whatever
Defendants think about their chances of success”). The Court will not decide these
discovery matters based on one party’s “‘strong belief in the merits of [the party’s]
litigation positions.’” Heller v. City of Dallas, 303 F.R.D. 466, 489 (N.D. Tex. 2014)
(quoting Third Pentacle, LLC v. Interactive Life Forms, LLC, No. 3:10cv00238, 2012
WL 27473, at *3 (S.D. Ohio Jan. 5, 2012)).
B.

Instructions not to answer questions as harassing

Plaintiff’s counsel also instructed Mr. Kasparov not to answer on three occasions
on the basis that questions were “harassing” – although two are closely connected:
1.

Dkt. No. 173, Defs.’ Ex. A, at 82:5-83:9:
Q Is it your testimony under oath – just please listen to my question. Is
it your testimony under oath that you didn’t have enough time to review
Ambit’s written contract and policies and procedures online even though
you had time to get on an airplane and fly from Florida to California to
meet with a lawyer to discuss suing Ambit? That’s your testimony?
[Plaintiff’s Counsel]: Objection to form.
A This is only two days. There’s not enough time. I got flight connections
and, you know, you going far away, you tired, exhausted.
Q So you had time to fly to California, but you didn’t have time to review
the contract. Is that what you’re saying?
[Plaintiff’s Counsel]: I’m going to have to object and instruct the witness
not to answer because I believe that these questions are harassing –
THE WITNESS: Yeah.
[Plaintiff’s Counsel]: – I believe that you’ve repeatedly asked the same
question. You’ve gotten your answer, sir.
[Defendants’ Counsel]: I think I haven’t gotten a responsive answer.
BY [Defendants’ Counsel]:
Q But are you going to refuse to answer the question I just posed?
[Plaintiff’s Counsel]: I’m instructing you not to answer because it’s
harassing.
Q Are you going to refuse to answer?
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A Yes.
2.

Id. at 143:8-145:4:
Q Let me go back to something else, sir. So you knew from all your
experience, two decades plus in the MLM industry, that Mr. Thompson,
who was an independent consultant and not corporate, you knew that he
didn’t have authority to be making promises to you about what positions
you would be granted, correct?
[Plaintiff’s Counsel]: Objection to the form.
Q You can answer.
A Yeah, that’s why I told him. That’s why I was not believing him.
Q Sir, is the answer to my question yes?
[Plaintiff’s Counsel]: Objection to the form.
Q You can answer.
A Yes. I know he can’t offer me executive position.
Q Okay. And you knew that – you knew that because Mr. Thompson was
an independent consultant and didn’t work for the corporate entity, you
knew that he couldn’t make an offer to make you executive, correct?
[Plaintiff’s Counsel]: Objection to the form.
Q You knew that? Yes?
A Correct. But he told me he founder partner. He give me business card.
This was founder partner here, and he told me, I’m working with seniors
directly, and I’m on advisory board. He told me. You want truth? This the
truth.
[Defendants’ Counsel]: Objection; nonresponsive, sir. Objection –
objection; nonresponsive.
Q You knew from all your years working in the MLM industry that one
independent consultant couldn’t make promises on behalf of the company
to another independent consultant. You knew that, right?
[Plaintiff’s Counsel]: Objection to the form. Counsel, I believe that
question’s been asked and answered three times –
[Defendants’ Counsel]: It absolutely hasn’t. If you instruct him not to
answer, I’m going to seek sanctions. This goes to the core of the case. You
are object – you are obstructing the deposition.
BY [Defendants’ Counsel]:
Q Answer the question.
[Plaintiff’s Counsel]: Objection. I’m instructing you not to answer.
Q Do you refuse to answer that question?
[Plaintiff’s Counsel]: That’s my instruction.
THE WITNESS: Okay.
Defendants assert that this “questioning is not ‘harassing’ and does not warrant
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an instruction not to answer” and that, “[i]f Plaintiff’s counsel truly believed the
question was improper, they only permissible course of action would be to suspend the
deposition,” but “Plaintiff’s counsel was not permitted to instruct Plaintiff not to
answer.” Dkt. No. 172 at 27. Although Plaintiff’s counsel now expresses concerns about
the viability of doing so and bringing a Rule 30(d)(3) motion during the deposition, the
Court agrees with Defendants. See Murillo Modular, 2016 WL 6139096, at *6. And,
contrary to Mr. Kasparov’s assertion, this Court’s Standing Order on Discovery does
not provide otherwise or alter Rule 30’s application or operation in this case.
Here, too, the improper instructions not to answer will be addressed by requiring
Mr. Kasparov to submit to a Rule 31 deposition on written questions limited to the
three questions quoted immediately above that Plaintiff’s counsel instructed him not
to answer.
IV.

Award of expenses
Under Rules 30(d)(2) and 37(a)(5), the Court determines that, under all of the

circumstances presented here, Mr. Kasparov and Defendants should bear their own
expenses, including attorneys’ fees, in connection with the MTC.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part Defendants’ Motion to Compel Plaintiff to Reappear for
Deposition and for Sanctions Based on Plaintiff’s Obstructive Conduct During His
Deposition [Dkt. No. 170].

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SO ORDERED.
DATED: October 26, 2017
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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