Opinion
4:99-CV-987-E
April 27, 2001
MEMORANDUM OPINION AND ORDER
Now before the Court is a Motion to Compel Answers to Deposition Questions and to Produce Documents at Deposition filed by Defendant Standard Motor Products ("Standard") in the above styled and numbered cause. Plaintiff Larry Howell ("Howell") has not filed a response in opposition. After considering the Motion, the record before the Court, and the applicable law, the Court makes the following determinations.
I. BACKGROUND
Howell's original Complaint, alleging causes of action under the federal Family Medical Leave Act ( 29 U.S.C. § 261) and the Texas Labor Code, was filed on November 30, 1999. On October 2, 2000, Standard served a notice of deposition on Howell, and included a duces tecum requesting that Howell bring to the deposition all documents indicating that he had been released by his physician to return to work with or without restrictions. By a letter dated October 5, 2000, Howell's attorney stated that as a party to the lawsuit, Howell was not subject to subpoena.
Howell's deposition took place on October 5, 2000. In accordance with his attorney's letter, Howell did not produce the documents requested in Standard's subpoena. In addition, Howell's attorney also refused to let Howell answer numerous questions from opposing counsel regarding Howell's understanding of the provisions of FMLA and his allegations that Standard retaliated against him for requesting FMLA leave.
Howell died on February 9, 2001. Standard now brings this Motion, claiming that, because Howell would not answer certain questions at his deposition, his subsequent death has left Standard without any means to complete discovery in this matter. Standard requests that the Court prevent Howell's testimony from being used at trial, and prohibit Howell from introducing any evidence relating to his retaliation claims.
II. DISCUSSION
A. Documents Requested for Howell's Deposition
Standard argues that the Court should sanction Howell for refusing to produce documents at his deposition that Standard had requested in a notice of deposition and attached duces tecum. Federal Rule of Civil Procedure 30(b)(5) states, however, that:
[t]he notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request.
Thus, a request for the production of documents at a deposition must allow 30 days for compliance, as mandated by Rule 34. See Brown v. Greyhound Lines, Inc., 1995 WL 81195 *1 (S.D. Tex. 1995). Standard's request, served on October 2, 2000, gave Howell only three days before his October 5, 2000, deposition to assemble the requested documents, and Howell was well within his rights under Rule 30(b)(5) and Rule 34 to refuse to produce the materials at his deposition. Accordingly, Standard's Motion is DENIED as the production of documents at Howell's deposition.
B. Howell's Refusal to Answer Deposition Questions
Standard also urges the Court to sanction Howell for following his attorney's instructions to not answer deposition questions asked by defense counsel. One particular deposition excerpt that Standard cites to the Court as evidence of Plaintiff counsel's objectionable conduct is the following:
Q: [By Mr. Pham, attorney for Standard] Are you alleging that you were retaliated against because you asked for FMLA leave?
MS. DURKIN [counsel for Howell] Objection.
A: [By Plaintiff Larry Howell] Yes.
Q: You are?
A: As far as I remember.
Q: Okay. Then we need to talk about it if you're alleging that . . . What acts of retaliation were taken against you because you sought FMLA benefits?
MS. DURKIN: Objection. Asking for legal conclusions is not an appropriate deposition question, and you're just wasting everybody's time . . . Just ask him questions — a factual question.
MR. PHAM: I have asked him a question, and I'm going to stick by that question. Could you please read that question back to him, please?
(Last question read back.)
MS. DURKIN: I'm going to suspend the deposition at this point and just request a hearing.
MR. PHAM: If you suspend the deposition, then I'm just going to put on the record that we're ready, willing, and able to continue, and I think it's a proper question, but I respect your suspension and I am suspending this deposition under protest. Are you closing this deposition now?
MS. DURKIN: If you can conduct yourself in accordance with the rule and ask questions that are factual questions, not calling for legal conclusions that are not anywhere even remotely close to admissible questions or answers, then we can proceed . . .
MR. PHAM: . . . So are you saying that you want to take a break, or do you want to stop this deposition?
MS. DURKIN: Depends on whether you intend to comply with the rules. If there's no point in taking a break and coming back for round three of the same dog and pony show. If you're going to come back and ask questions that are appropriate questions, factual questions, that do not call for legal conclusions or medical conclusions, then —
MR. PHAM: So you're saying that I can't ask him what acts of retaliation were taken against him?
MS. DURKIN: I believe my — what I've said speaks for itself.
MR. PHAM: Are you going to instruct the witness not to answer that question?
MS. DURKIN: I'm going to suspend the deposition, unless you —
MR. PHAM: I will not — I want that question answered.
MS. DURKIN: Then I'm suspending the deposition and we can go before the judge and just ask him.
MR. PHAM: Okay. And for the record . . . there are many more questions I want to ask. But the same line of questions I will ask is, What act of retaliation and what act of discrimination — what has been taken against him? Those are the line of questions that I'm going to ask him, and you're saying that you're not going to allow him to answer those questions.
MS. DURKIN: I'm not required to respond to you . . . [I]f you're going to continue to ask questions that calls for legal conclusion, medical conclusion, or beyond the scope of knowledge of the witness, then we're wasting our time.
Q: My last question to you, sir, was, What acts of retaliation were taken against you because you sought FMLA benefits?
MS. DURKIN: Objection. The witness doesn't — you've not defined retaliation. You're asking him to — to answer questions that call for legal conclusions.
MR. PHAM: I'm going to suspend the deposition right now. I'm going to object to the side bar and the coaching, and I'm going to suspend this and we'll just go to court.
Howell Dep. at 86-94.
Federal Rule of Civil Procedure 30(c) states that
[a]ll objections made at the time of examination [at a deposition] . . . to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections.
Subsection (d)(1) of the same rule notes that "[a] party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion [to the court]." FED. R. CIV. P. 30(d)(1). "If a deponent fails to answer a question propounded or submitted" during a deposition, Federal Rule of Civil Procedure 37(a)(2)(B) provides that "the discovering party may move for an order compelling an answer. . . ." FED. R. CIV. P. 37(a)(2)(B).
Numerous federal courts have held that if an attorney has an objection to the questions being asked of his client, he should place it on the record so that the evidence can be taken subject to such objection. See Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995);Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 902 (7th Cir. 1981); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977). If counsel believes that discovery procedures are being conducted in bad faith or abused in any manner, the appropriate action would be to present the matter to the court by motion under Rule 30(d). See Ralston Purina, 550 F.2d at 973. It is highly improper, however, for an attorney to instruct a deponent not to answer non-privileged questions. See Nutmeg Ins. Co. v. Atwell, Vogel Sterling, 120 F.R.D. 504, 508 (W.D. La. 1988).
The conduct of Howell's counsel at her client's deposition is completely indefensible, and runs counter to numerous provisions in the Federal Rules of Civil Procedure and the Northern District of Texas's standards for attorney conduct set forth in Dondi Properties Corporation v. Commerce Savings and Loan Association, 121 F.R.D. 284, 287-88 (N.D. Tex. 1988). The line of questioning pursued by Standard's attorney — asking Howell what acts of retaliation Standard took against him because of his claim for benefits under FMLA — is certainly relevant to Howell's claims in this matter, and should have been answered. The Court is unaware of any caselaw or provisions of the Federal Rules of Civil Procedure that support the position taken by Howell's attorney that her client could refuse to answer a deposition question on the grounds that it called for a legal conclusion. As the questions asked by Standard's attorney did not implicate a recognized privilege, Howell's attorney should simply have placed her objection on the record and permitted her client to answer. If counsel believed that Standard's attorney was conducting the deposition in bad faith or in a manner designed to annoy, embarrass, or harass Mr. Howell — and the Court's review of the deposition transcript reveals no such conduct — then the proper procedure would have been to suspend the deposition and immediately present a motion to this Court pursuant to Federal Rule of Civil Procedure 30(d)(3). Howell's attorney took no such action. Accordingly, it is hereby ORDERED that Standard's Motion to Compel is GRANTED as to the unanswered deposition questions asked of Plaintiff Howell.
The proper relief due to Standard would, in most cases, be an order requiring Mr. Howell to submit to another deposition. Because of Mr. Howell's recent death, however, this remedy obviously is not available. Accordingly, the Court hereby ORDERS that Howell will be prohibited from introducing any evidence at trial regarding a claim for retaliation under the provisions of FMLA, which was the subject matter of the questions Howell did not answer at his deposition. The Court believes that this is an appropriate remedy for the errant actions of Howell's attorney, and is a sanction that will not unduly harm Mr.
The Court levies this sanction against Howell pursuant to its inherent power to regulate practice in pending cases. See Chambers v. NASCO. Inc., 501 U.S. 32, 43 (1991). Federal courts have not hesitated to sanction conduct — such as the failure to answer deposition questions — that delays or disrupts the litigation of a case. See Carroll v. Jaques, 926 F. Supp. 1282, 1288-89 (E.D. Tex. 1996).
Howell's interests in this matter.
Mr. Howell's case should not be adversely affected by this sanction because he did not bring a FMLA-based retaliation claim in his Complaint, and did not amend his pleadings to include such a claim by March 23, 2001, the deadline to do so.
IT IS SO ORDERED.