Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hank v. Great Lakes Construction Co.

United States District Court, N.D. Ohio, Eastern Division

October 25, 2017

STEVEN M. HANK, Plaintiff,
v.
GREAT LAKES CONSTRUCTION COMPANY, et. al., Defendants.

          CHRISTOPHER A. BOYKO JUDGE.

          ORDER

          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         On June 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.[1] 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 is DENIED.[2]

         II. Law

         Federal 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 conduct:

(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 deponent.

         “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. 30(d)(2).

         III. Analysis

         Hank 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 1059.

         Initially, 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.

         Next, 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.[3] 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.

         As to 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.