United States District Court, S.D. Florida
ORDER ON CHEVALDINA'S MOTION FOR SANCTIONS AND
MOTION FOR AN EXTENSION OF THE DISCOVERY PERIOD
G. TORRES, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Irina Chevaldina's motion
for sanctions [D.E. 200] and motion for an extension of the
discovery period [D.E. 201] against the Center for Individual
Rights (“Plaintiff” or “CIR”).
Plaintiff responded to Chevaldina's motions on June 12,
2018 [D.E. 213, 215] to which Chevaldina replied on June 22,
2018. [D.E. 232]. Therefore, Chevaldina's motions are now
ripe for disposition. After careful consideration of the
motions, responses, replies, and for the reasons discussed
below, Chevaldina's motions are DENIED.
an action for breach of contract. The complaint - filed on
March 11, 2016 [D.E. 1] - alleges that Plaintiff represented
Chevaldina pro bono in an appeal before the 11th
Circuit in Katz v. Google, Appeal No. 14-14525, in
which the Eleventh Circuit affirmed summary judgment in favor
of Chevaldina in a copyright infringement
action. See Katz v. Google, Inc., 802
F.3d 1178 (11th Cir. 2015), aff'g, Katz v.
Chevaldina, 12-cv-22211, 2014 WL 5385690 (S.D. Fla.
Sept. 5, 2014). Plaintiff alleges that Chevaldina had few
financial obligations under the retainer agreement in that
case and that Plaintiff paid the out of pocket expenses of
the suit. Plaintiff contends that it only asked Chevaldina
for (1) reasonable attorney fees and expenses as permitted
under law, and (2) that Chevaldina provide Plaintiff with any
fees or expenses that were attributable to Plaintiff's
expenditures and/or the work of its attorneys. If Chevaldina
decided to settle the case, Plaintiff alleges that Chevaldina
was also obligated to provide Plaintiff with a reasonable
amount in attorney's fees and expenses.
December 2015 - while being represented by another attorney -
Defendant settled all the remaining claims in the
Katz case. In the settlement, Plaintiff claims that
Defendant obtained only $10, 000 in attorney fees for the
work of Plaintiff's attorneys as well as both taxable and
non-taxable costs. Shortly thereafter, Plaintiff sought to
challenge the fee award in the Eleventh Circuit, but
Defendant allegedly instructed Plaintiff to withdraw its
motion and Plaintiff reluctantly complied. Therefore,
Plaintiff suggests that Defendant did not obtain a reasonable
amount in attorneys' fees for the work of Plaintiff's
attorneys and that Defendant breached the retainer agreement.
In exchange for the low sum of $10, 000 in attorney fees,
Plaintiff alleges that Chevaldina agreed with Katz to drop a
substantial claim against Chevaldina in excess of $100, 000.
Because Plaintiff alleges that it has been deprived of a
reasonable attorney fee award, Plaintiff seeks judgment
against Chevaldina in an amount of no less than $105, 000 -
including reasonable costs and expenses in accordance with 28
U.S.C. § 1920.
Chevaldina's Motion for Sanctions [D.E. 200]
29, 2018, Chevaldina filed a motion for sanctions against
Plaintiff's counsel for improper conduct that occurred at
a deposition on May 18, 2018. [D.E. 200]. On that date,
Plaintiff produced Mr. Crespo, who serves as a paralegal for
the Mandel Law Firm. Chevaldina claims that the deposition
had to be adjourned after less than two hours due to the
inappropriate behavior of Plaintiff's counsel David
Mandel (“Mr. Mandel”) and Michael Rosman
(“Mr. Rosman”). Chevaldina alleges that Mr.
Mandel made numerous speaking objections and added
unnecessary commentary with the goal of derailing the
deposition. For example, Mr. Mandel referred to
Chevaldina's questions as unintelligent and repeatedly
instructed Mr. Crespo not to answer many of her questions. In
doing so, Chevaldina believes that Mr. Mandel spoke more than
Mr. Crespo and that he objected approximately one hundred
times before the deposition concluded.
matters worse, Chevaldina claims that Mr. Crespo had no
knowledge of the information in the deposition notice
relating to Plaintiff's disclosure of her protected
personal information and was therefore unprepared. And
because Mr. Crespo was unprepared and Plaintiff's counsel
acted inappropriately throughout the deposition, Chevaldina
requests (1) that sanctions be awarded in the form of fees
and costs, (2) that the Court compel the continued deposition
of Mr. Crespo, and (3) that the discovery period be extended.
is clear on what types of objections an attorney may make and
when counsel may instruct a deponent not to answer a
question. Rule 30 states in relevant part the following:
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
Fed. R. Civ. P. 30(c)(2). Testimony taken during a deposition
is to be completely that of the deponent, not a version of
the testimony which has been edited or glossed by the
deponent's lawyer. See Hall v. Clifton Precision, 150
F.R.D. 525 (E.D. Pa. 1993). This means that the witness must
be allowed to provide an answer to the best of his or her
ability, free from any influence by the attorney. If the
witness is confused about a question, or if a question seems
awkward or vague to the witness, the witness may ask the
deposing counsel to clarify the question.
“Rule 30(b)(6) obligates the responding corporation to
provide a witness who can answer questions regarding the
subject matter listed in the notice . . . If the designated
deponent cannot answer those questions, then the corporation
has failed to comply with its Rule 30(b)(6) obligations and
may be subject to sanctions.” King v. Pratt &
Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). When producing
a corporate representative for deposition, a duty extends
beyond the mere act of presenting a human body to speak on
the corporation's behalf. Instead, the party producing
the witness has a duty to prepare the deponent.
Chevaldina's motion is not entirely without merit because
- after a thorough review of the deposition transcript - Mr.
Mandel violated the Federal Rules when he repeatedly
instructed Mr. Crespo not to answer Chevaldina's
questions, especially those based on form and relevancy. If
Mr. Mandel felt compelled to make objections, he should have
made those briefly on the record and the deposition should
have continued with the testimony of Mr. Crespo. Then, if
necessary, the Court ...