United States District Court, N.D. Ohio, Eastern Division
STEVEN M. HANK, Plaintiff,
GREAT LAKES CONSTRUCTION COMPANY, et. al., Defendants.
CHRISTOPHER A. BOYKO JUDGE.
M. Parker United States Magistrate Judge.
27, 2017, plaintiff Steven M. Hank deposed a dispatcher of
defendant International Union of Operating Engineers, Local
18 (“Local 18”), Eileen Sliwinsky. Hank has moved
the court to order Timothy Fadel, counsel for Local 18, to
reimburse a portion of plaintiff's legal fees, to for his
conduct at that deposition. ECF Doc. 68. Hank argues that
Fadel improperly coached the witness and interposed numerous
speaking objections. Id. Fadel counters that fees
should be denied because he did not impede, delay, or
frustrate Hank's attempts to depose Sliwinsky. ECF Doc.
76. The undersigned agrees that Fadel interposed improper
objections and failed to conduct himself in accordance with
the civil and local rules of procedure. Nonetheless, the
undersigned finds that Fadel's conduct did not impede,
delay, or frustrate Hank's attempts to depose Sliwinsky.
Thus, Hank's motion for fees and to re-depose Sliwinsky
Rule of Civil Procedure 30 provides the standard for
deposition conduct and authorizes the court to impose
sanctions on parties who fail to abide by the rules.
Fed.R.Civ.P. 30(d) provides, in part: “[a]ny 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). The rule further provides that
“[a]t any time during a deposition, on motion of a
party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such manner
as unreasonably to annoy, embarrass, or oppress the deponent
or party, the court ... may order the officer conducting the
examination to cease forthwith from taking the deposition, or
may limit the scope and manner of the taking of the
deposition as provided in Rule 26(c). Fed.R.Civ.P. 30(d)(4).
Local Rule 30.1 also provides instructions for deposition
(3) Objections. Objections must be limited to (a) those that
would be waived if not made pursuant to Fed.R.Civ.P. 32(d)(3)
and (b) those necessary to assert a privilege, enforce a
limitation on evidence directed by the Court or present a
motion under Fed.R.Civ.P. 30(d)(3). No other objections can
be raised during the course of the deposition. In the event
privilege is claimed, examining counsel may make appropriate
inquiry about the basis for asserting the privilege.
(4) Speaking Objections. Speaking objections that refer to
the facts of the case or suggest an answer to the deponent
are improper and must not be made in the presence of the
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.
argues that Fadel obstructed Sliwinsky's deposition with
excessive and improper objections, speaking objections, and
suggestive responses. ECF Doc. No. 68, Page ID# 1056. Hank
argues that such conduct delayed, frustrated, and obstructed
the deposition. Id. Hank complains that Fadel
frequently made statements such as “Answer if you
know;” or “Answer if you understand;” or
“Answer if you can.” Id.st 1058-59. Hank
argues that these objections were attempts to coach the
witness because after Fadel states answer “if you
know” or “if you can, ” Sliwinsky often
stated that she did not know the answer. Id. at
the deposition transcript demonstrates that Fadel interposed
unnecessary and excessive objections. Pursuant to L.R. 30.1
objections are limited to “(a) those that would be
waived if not made pursuant to Fed.R.Civ.P. 32(d)(3) and (b)
those necessary to assert a privilege, enforce a limitation
on evidence directed by the Court or present a motion under
Fed.R.Civ.P. 30(d)(3).” Several of Fadel's
objections went beyond this scope.
Fadel improperly interjected numerous speaking objections. In
fact, Fadel admits that “adding the comment ‘if
you know' to a form objection is concededly not
advisable.” ECF Doc. No. 76, Page ID# 1285. However, he
contends that these comments were not attempts to coach the
witness. Id. Moreover, Fadel points out that
Hank's counsel used the same language at least three
times during his deposition. Fadel is correct on both points.
As to the latter, Hank's counsel improperly made similar
objections during Hank's deposition. Thus, Hanks'
arguments are less persuasive where his own counsel engaged
in similarly inappropriate behavior.
the issue of coaching, the record reflects several instances
where after Fadel made statements such as answer if you know
or understand Sliwinsky responded that she did not know or
understand the question. See e.g. ECF Doc. 67-1; Page ID #
837-38, 865, 877, 886, 1001, 1008, 1031. Fadel also
frequently stated “Objection. You can answer.”
See e.g. Doc 67-1; Page ID# 803-05, 807, 809-812, 819,
821-23, 831, 835, 843, 844, 847, 848, 852, 999. These
speaking objections read together could suggest an attempt to
coach the witness. However, a thorough review of the
transcript does not suggest an effort at coaching the witness
not to answer because, contrary to Hank's contention, in
many cases where Fadel stated answer “if you
know” or ...