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Specht v. Google

June 25, 2010

ERICH SPECHT, ET AL., PLAINTIFFS,
v.
GOOGLE, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant Google's (hereinafter, "Google") Motion to Compel and for Sanctions regarding the deposition of Martin Murphy; and Plaintiff Erich Specht's (hereinafter, "Specht") Cross-Motion for a Protective Order and for Sanctions. For the reasons stated below, Google's Motions are granted in part and Specht's Motions are denied.

I. BACKGROUND

Plaintiff Erich Specht brought this lawsuit for trademark infringement on behalf of himself and two software corporations that he owns -- Android Data Corporation and Android's Dungeon, Inc. (hereinafter, collectively, the "Plaintiffs"). Plaintiffs, who own a federal trademark using the word "Android," allege that Google has infringed their trademark by using it in connection with Google's software for cellular phones. Google argues that Specht abandoned the trademark in 2004, when he admittedly allowed the corporation that used the trademark to be involuntarily dissolved. Specht responds that he continued to use the trademark in commerce and did not intend to abandon it.

Google has brought a Motion to Compel and for Sanctions against Plaintiffs in regard to the deposition of Martin Murphy. Specht has filed a Cross-Motion for a Protective Order and for Sanctions. These motions arise out of the exceedingly contentious deposition of Martin Murphy, who wears the dual hats of (1) counsel for Specht and (2) proprietor of Village Realty and Investment Company ("VRI"), a one-time customer of one of Specht's Android software companies. Murphy also happens to be Erich Specht's brother-in-law.

Google argues that Specht's attorney, P. Andrew Fleming, "abused the attorney-client privilege and work-product doctrine to prevent the witness from testifying on clearly non-privileged issues [and] abused the deposition process through the use of speaking objections and outright coaching," among other things. Google seeks an order to compel a second deposition in which Mr. Murphy must answer certain questions that Google considers were left unanswered the first time. Google also seeks sanctions against Mr. Fleming.

Plaintiffs argue that deposing an opponent's attorney is a "discouraged practice" that "disrupts the adversarial system." Plaintiffs argue that Fleming's objections were merely protecting privileged information from Google's overly aggressive interrogation. Plaintiffs cross-move for a protective order to bar any further deposition of Mr. Murphy and also ask for sanctions against Google.

II. DISCUSSION

A. Mr. Fleming's and Mr. Murphy's Actions at the Deposition

1. Speaking Objections and Witness Coaching

Federal Rule of Civil Procedure 30(c)(2) prescribes the proper form of objections during depositions:

An objection at the time of the examination . . . 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 30(d)(3).

Thus, a party who wishes to object to a question must do so concisely, and the deponent must still answer the question. Breaux v. Haliburton Energy Servs., 2006 WL 2460748, *4 (E.D. La. 2006) ("[O]nce the objection is made, the witness answers the question and the parties move on."). The only exceptions are those stated in the last sentence of Rule 30(c)(2), i.e., preservation of a privilege, enforcing a limitation ordered by the court, or presentation of a motion to terminate or limit the deposition under Rule 30(d)(3).

Objections that are argumentative or that suggest an answer to a witness are called "speaking objections" and are improper under Rule 30(c)(2). See, e.g., Jadwin v. Abraham, 2008 WL 4057921, *6-*7 (E.D. Cal. 2008); Heriaud v. Ryder Transp. Servs., 2005 WL 2230199, *2-*9 (N.D. Ill. 2005); AG Equip. Co. v. AIG Life Ins. Co., 2008 WL 5205192, *2-*4 (N.D. Okla. 2008); Deville v. Givaudan Fragrances Corp., 2010 WL 2232718, *6-*8 (D.N.J. 2010).

As soon as Mr. Murphy was sworn for the deposition, Mr. Fleming announced that only two subjects were relevant to any inquiry and that these were (1) services provided by plaintiffs to VRI and (2) statements Mr. Murphy may have made to the media concerning the case. Mr. Fleming cautioned Google's attorney not to stray beyond those subjects or he would "vigorously assert" attorney-client privilege and work-product doctrine.

Mr. Fleming went on to make numerous, extensive, and repeated speaking objections. To give one example, Google's attorney, Mr. Nelson, asked Mr. Murphy the simple question of whether he understood that he had been designated as a fact witness in the case. The following exchanges then occurred:

A. [Mr. Murphy] No, I wouldn't --

MR. FLEMING: Object -- stop. You've got to let -- you've got to let me object.

Object to the form of that question as calling for material that would constitute work product. It's argumentative.

BY THE WITNESS:

A. I'm going to refuse to answer that based on attorney-client privilege and work product doctrine.

BY MR. NELSON [Google's attorney]:

But do you understand why you're here today as a witness, sir?

You issued a subpoena, and we accepted service of the subpoena. That's why he's here.

MR. FLEMING: Yeah. Because he's been subpoenaed. That's why he's here.

MR. FINN [a Google attorney]: Mr. Fleming, do you have an objection, rather than just speaking and testifying for the witness?

MR. FLEMING: Well, these questions are ridiculous. Why is he here? He's here pursuant to legal process. That's why he's here, because you guys issued a subpoena, and we accepted service.

That's why we're here.

MR. FINN: And we've asked if he understands --

MR. FLEMING: He's not here -- sorry?

MR. FINN: Mr. Fleming --

MR. FLEMING: That's the answer.

Okay. Answer the question. Why are you here, Mr. Murphy?

THE WITNESS: Pursuant to a subpoena.

This set the pattern for the deposition. Google would ask a simple question, and Mr. Fleming, through extensive, argumentative speaking objections, would take the procedure off on some wild excursion, meanwhile coaching the witness on how to answer.

Mr. Fleming egregiously violated Rule 30(c)(2) by instructing Mr. Murphy not to answer a question because his answer would be a "guess." Google's counsel was pursuing a line of questions that established that Mr. Murphy's law practice had evolved from strictly serving clients ...


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