The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
On December 22, 2000, Thomas Heriaud, who was working at the
time as a delivery truck operator, was injured on the job while
using the tail gate lift device on a truck leased to his employer
by Ryder. Mr. Heriaud sued Ryder, alleging that the lift was
defective and that Ryder should therefore be liable for his
injuries; he also sued Morgan Corporation and the Maxon Lift
Corporation, which are alleged to have been involved in the
design, manufacture, and distribution of the lift. Mr. Heriaud's
wife joined in the suit, alleging loss of society. The defendants
removed the case, and discovery has been limping along, with a
relatively high degree of court intervention and monitoring. The
case is currently before the Court on a motion for sanctions
filed by the defendants. The defendants seek sanctions for the way the Heriauds'
attorney, Bradley D. Steinberg, behaved at the May 17, 2005
deposition of the plaintiffs' liability expert, Douglas Morita;
they also seek sanctions based upon the way Mr. Morita conducted
himself at the deposition. According to the defendants,
throughout Mr. Morita's deposition, Mr. Steinberg, made "speaking
objections," with the apparent intention of, at times, testifying
for Mr. Morita, and, at other times, signaling to Mr. Morita that
he should testify (or not testify) in a particular manner. At one
point during the deposition, the parties called the Court to seek
guidance as to how to proceed, and the Court admonished Mr.
Steinberg that his objections were improper and that he should
stop making them. He apparently declined to follow the Court's
instruction, and, ultimately, the defendants terminated the
Thereafter, Ryder, Morgan Corporation and Maxon Lift filed
separate motions for sanctions. In its motion, Ryder asks the
Court to disqualify Mr. Morita from further participation in the
case, to censure Mr. Steinberg for his conduct, and to impose a
monetary sanction on Mr. Steinberg and the Heriauds to cover the
fees and costs Ryder incurred to have its attorneys prepare for
and attend the aborted Morita deposition and to prepare the
motion for sanctions. Morgan asks the Court to order Mr. Morita's re-deposition; it also seeks sanctions against Mr.
Steinberg. Maxon Lift argues that the defendants and the Court
have tolerated Mr. Steinberg's conduct for far too long. It asks
the Court to bar Mr. Morita from testifying at trial;
alternatively, Maxon asks the Court to order plaintiffs and Mr.
Steinberg to pay Maxon for the attorneys' fees it incurred in
preparing for and attending Mr. Morita's deposition, and to order
plaintiffs and Mr. Steinberg to again produce Mr. Morita for
deposition, at their expense.
The defendants seek sanctions under Rules 30 (d) (3) and 37 (b)
(2) (E) of the Federal Rules of Civil Procedure. Rule 30 (d) (3)
provides that "[i]f the court finds that any impediment, delay,
or other conduct has frustrated the fair examination of the
dependent, it may impose upon the persons responsible an
appropriate sanction, including the reasonable costs and
attorney's fees incurred by any parties as a result thereof."
Rule 37 (b) (2) provides, in relevant part, that:
[i]f a party or an officer, director, or managing
agent of a party or a person designated under Rule 30
(b) (6) or 31 (a) to testify on behalf of a party
fails to obey an order to provide or permit
discovery, including an order made under subdivision
(A) of this rule or Rule 35, or if a party fails to
obey an order entered under Rule 26(f), the court in
which the action is pending may make such orders in
regard to the failure as are just, and among others
(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to
produce another for examination, such orders as are
listed in paragraphs (A), (B), and (C) of this
subdivision, unless the party failing to comply shows
that that party is unable to produce such person for
Subsections (A), (B), and (C) allow the Court to order that
certain matters are deemed established (subsection A); to bar the
disobedient party from supporting or opposing certain claims or
defenses or prohibit that party from introducing designated
matters into evidence (subsection B); and to strike out pleadings
or parts thereof or dismiss the case entirely. Fed.R.Civ.P. 37
(b) (2). Under this rule, the Court can also order the
disobedient party to pay the reasonable expenses, including
attorney's fees, incurred as a result of the disobedience. Id.
There is no question in this case that Mr. Steinberg's conduct
"frustrated the fair examination of" Mr. Morita. He was hostile
from the beginning, and he remained in that posture throughout
the deposition. With counsel's third question, Mr. Steinberg was
argumentative and combative for no apparent reason:
[By Mr. Fuoco] Q Were you aware of the need to
produce any and all documents to comprise a complete
and unabridged case file?
Mr. Steinberg: Well, wait, you submitted a written
document list as to what you wanted. And to the best
of Mr. Morita's and Polytechnic's ability, those
documents you requested were produced. Mr. Fuoco: Brad, are you testifying for Mr. Morita?
Mr. Steinberg: No, I am saying that what it was that
was produced was pursuant to a specific request, not
your oral one as you phrased it just now.
Transcript of Deposition of Douglas R. Morita, pp. 4-5. After Mr.
Steinberg's interruption, counsel asked the same question again
and, this time, got an answer:
Q At some point in time did you become aware of the
need to produce your complete and unabridged case
review material file?
Transcript of Morita Dep., pp. 4-5. Although this is a relatively
mundane question and answer, the example is indicative of how Mr.
Steinberg's constant interruptions and interjections, which began
at the earliest opportunity, impeded the flow and progress of the
Mr. Steinberg also interrupted the deposition when counsel
marked exhibits. After counsel marked the first exhibit, clearly
saying that he was going to mark it as "Group Exhibit A," Mr.
Steinberg interjected the following:
Mr. Steinberg: Excuse me. You're going to mark this 1
or A did you say? Which was it?
Mr. Fuoco: A.
Mr. Steinberg: All right. So if I understand then
your procedure, you're going to be using an
alphabetized form of exhibit identification, is that correct?
Transcript of Morita Dep., pp. 7-8. When counsel stated that he
was marking the second exhibit as "Group B," Mr. Steinberg again
Mr. Steinberg: For the record, Mr. Fuoco, is it
correct that you've identified Morita Group Exhibit
B, numbered pages 1 through and including 16, as
being reflective of professional services and the
time sheet total, is that correct?
Mr. Fuoco: Remember, Brad, I don't answer deposition
Mr. Steinberg: Well, you marked it. I'm asking you to
Mr. Fuoco: You didn't give me a chance, Brad.
Mr. Steinberg: Go ahead.
Transcript of Morita Dep., pp. 11-12. Again, this is really more
annoying than prejudicial; it merely illustrates Mr. Steinberg's
attempts to take charge and to impede and slow counsel's
questioning of the witness.
And there are plenty of examples of more prejudicial
interjections. To cite just one, when counsel attempted to ask
Mr. Morita about his findings concerning the cause of the lift
gate's failure one of the most critical issues in the case
Mr. Steinberg obstructed the dialogue:
Q Okay. Now sudden loading would mean an overload
situation? A Yes.
Q Meaning if the capacity of the lift gate is 1600
pounds there was more than 1600 pounds on the lift
gate platform, true?
Q Okay. In a sudden loading situation, we've already
established it's an overload, right?
Mr. Steinberg: Excuse me, are you talking now about
what he and I discussed or do you now just want to
argue with him concerning the fact that there was no
evidence of an overload? Which could you clarify
your question? . . . He is attempting to describe, if
I understand your question correctly, the fact that
there was no overload.
Transcript of Morita Dep., pp. 16-17.
This prompted counsel for Ryder to admonish Mr. Steinberg "not
to narrate" and to limit his comments to evidentiary objections,
as required by the federal rules. See Transcript of Morita
Dep., pp. 16-17. This, in turn, seemed to prompt Mr. Steinberg to
interrupt even more, mostly to ask the court reporter to read a
question or an answer back, see, e.g., Transcript of Morita
Dep., pp. 21, 22, 24, 35, 37. And it also seemed to escalate his
hostility. At page 24 of the transcript, he made a particularly
accusatory objection for vagueness: "[t]hat question is so vague
and so indefinite as to almost be incomprehensible and probably
is incomprehensible. I'm objecting to it. It's vague and
incomprehensible." And then, when counsel asked whether, despite the objection, Mr. Morita could answer the
question, Mr. Steinberg interjected:
Excuse me, would you just let him answer one question
at a time? He is at this time going through his file.
Please let him finish doing what he's doing before
you put another question.
Transcript of Morita Dep., p. 25. And when counsel noted his
intention to mark the interjection as an example of an
inappropriate comment, Mr. Steinberg retorted with "[i]f you will
permit him to just go through his file before putting another
question to him, I believe that would be a less oppressive and
annoying way of conducting the deposition." Transcript of Morita
Dep., p. 25.
Mr. Steinberg's conduct at the deposition, appears to have been
designed to rile his adversaries, and to suggest answers to Mr.
Morita. Counsel for Ryder tried to work around him and tried to
ignore him at times, but Mr. Steinberg just kept inserting
himself into the proceedings. He interrupted the proceedings, for
among other things, to ask whether the attorneys had decided how
they intended to divide the seven hours allotted for Mr. Morita's
deposition, to ask counsel for Ryder to get some kleenex, and to
ask the court reporter what time she officially started the
Rule 30 (d) requires that "any objection during a deposition must be stated concisely and in a non-argumentative and
non-suggestive manner." Mr. Steinberg repeatedly violated this
rule. He did not simply state the basis for his objections and
allow the deposition to continue; rather, he consistently
inserted himself into the process by giving lengthy soliloquies
as to how counsel's performance and questions were lacking, and
he refused to be ignored. To cite just one example, after one
straight-forward question, Mr. Steinberg objected as follows:
Now, your question, again, there's an ambiguity in it
I'd like you to clarify. Are you saying that elements
of what you have said, are you asking whether
elements have been used by him or are you asking that
particular form and format that you're talking about
used by him, which do you mean?
By Mr. Fuoco: [to Mr. Morita] Sir, do you understand
Mr. Steinberg: You refuse to clarify the question
apparently for the record. And, again, I think this
is a violation of the Rule 30 because I have asked
him to clarify and the interrogator refuses to
Transcript of Morita Dep., pp. 49-50. Over the next several
questions, Mr. Steinberg continued to press his demand for
clarification, despite the fact that the witness seemed not to
need any. He interjected:
Now, again, that question is ambiguous. Are you
including in this the contracts, are you including
the documents that deal with what it was that was
undertaken by Ryder in the format? In other words, is
that included in your question or are you excluding
it? So if you would clarify what you mean, please. Transcript of Morita Dep., pp. 54-55. And then:
What do you mean by all that he's learned? He's got
his background and experience. Are you excluding
that? Please clarify what you mean by all that he has
learned. Clarify it.
Transcript of Morita Dep., p. 56. And then, in case anyone had
missed his objections:
On several occasions thus far, okay, I have asked for
clarification. In the absence of clarification of
this type and form of question is annoying. It is
also abusive in the absence of clarifying. And that
is the reason why it is that I am asking for
clarification so that we can move on with this
Transcript of Morita Dep., p. 57. Undeterred, after the next
question, he interjected:
Excuse me. Again, will you please clarify, are you
asking for the basis? Are you asking for the
substantive information? Will you please clarify? And
in the absence of this, your question is abusive,
it's annoying, okay? And it's deliberately ambiguous.
Will you please clarify it?
Transcript of Morita Dep., p. 57. Without belaboring the point,
the repeated and often lengthy diatribes in search of
"clarification" continued all despite the fact that Mr. Morita,
who had already demonstrated that he was perfectly capable of
seeking clarification when he needed it, did not seem to be
struggling with the questions.
And Mr. Steinberg's objections and demeanor became increasingly
hostile and personal as the deposition proceeded. At one point, Mr. Steinberg objected to a question by telling
counsel "you either don't know what you're doing or you are
complicating things in such a way as to make the question
incomprehensible scientifically." Transcript of Morita Dep., p.
39. Although he said, on the record, that he was doing what he
needed to do to preserve objections, it is impossible to imagine
that he actually believed his conduct was required, or even
appropriate, under the federal rules.
Mr. Steinberg also used his objections to push his theory that
the lift gate was defective. For example, at one point he
objected to a question about the original welding on the lift
gate by saying: "Again, by this do you mean the actual physical
welding as it was being done, counsel, or do you mean the
remnants of it? Which do you mean?" Transcript of Morita Dep.,
pp. 82-83. And when counsel asked Mr. Morita whether he had "made
any effort at all to physically compare the Maxon drawings that
have been produced in this case to validate and verify that the
subject gate was made in accordance with those drawings, Mr.
Steinberg interjected "[i]n accordance or nonaccordance, counsel,
which way do you mean it?" Transcript of Morita Dep., p. 84.
Similarly, when counsel asked Mr. Morita whether he "could
personally go out and locate a model RCM Maxon lift gate, take it
into your laboratory, get out the design drawings and compare the left cam and stop in terms of how this exemplar lift gate had
been manufactured," Mr. Steinberg objected by saying:
Objection. The objection is this, if another vehicle
is involved, that might be a proper question. But if
you are now taking some other particular vehicle with
another type of lift gate, that may or may not have
any bearing. And at this point there is a lack of
factual basis for your question.
Now, at this point I am asking you to please form
your question clearly and please don't use questions
that have no basis in the evidence. I object for
Transcript of Morita Dep., pp. 85-86.
And when counsel for Ryder asked Mr. Morita what role corrosion
plays in the degradation of a weld, Mr. Steinberg objected on the
ground that "[t]his particular form of question is objectionable.
It's objectionable because of the fact that it is a misstatement
of the particular opinions expressed by Mr. Morita in his report.
I object to the form of it for those reasons." Transcript of
Morita Dep., p. 91.
At one point, Mr. Steinberg interrupted the deposition, saying
that he wanted to ask Mr. Morita a question; he then engaged in a
whispered, off-the-record exchange with Mr. Morita, in which he
appears to have tried to refresh Mr. Morita's memory without
any prompting about some testimony Mr. Heriaud had given at his
deposition. See Transcript of Morita Dep., pp. 92-94. This was
inappropriate. Additionally, when counsel for Ryder asked Mr. Morita to
highlight on a diagram a particular part he was talking about,
Mr. Steinberg instructed Mr. Morita not to mark documents unless
and until defense counsel agreed that their experts would be
permitted to mark drawings when asked to do so. See Transcript
of Morita Dep., p. 32. And, based upon Mr. Steinberg's
instruction, Mr. Morita refused to highlight the diagram as
requested. Id. at 33-34. This was tantamount to an ...