"Few depositions warrant sanctions more than this one," wrote Judge Eduardo Robreno (E.D. Pa.), in this opinion dated February 29, before embarking on an "extended discussion" of the conduct to show why. The story and a PDF of the opinion were posted on the Wall Street Journal’s Law Blog.
Generally speaking, the deponent, Aaron Wider of HTFC Corp., was taken to task for:
1. engaging in hostile, uncivil, and vulgar conduct;
2. impeding, delaying, and frustrating fair examination; and
3. failing to answer and providing intentionally evasive answers to deposition questions.
To be more specific, the court noted that, during his two-day deposition in this breach-of-contract case, Wider used the F-word "and variants thereof" 73 times (9.86/hour, or about one every six minutes), while using the word "contract" just 14 times. And the F-word and its variants were by no means the only expletives being used, which gives you some sense of what the deposition was like.
The court concluded that the abusive language could only have been chosen "to intimidate and demean opposing counsel." Apart from the obvious, the court noted that Wider repeatedly referred to opposing counsel as a "clown," and suggested that a later reference to "clown" verged on a physical threat:
Q. My question is where are you currently employed?
A. I’m not. I just told you I work for free.
Q. Okay. You’re not employed by HTFC Corporation?
A. No, I own HTFC Corporation. Be specific.
Q. Okay. And what do the initials HTFC mean?
A. Hit That [Expletive] Clown. That’s what it means. It’s an acronym.
Maybe it does actually stand for that — the details aren’t provided on the company’s website. I notice that there is a state agency in New York called the "Housing Trust Fund Corporation," but this isn’t it. Wider’s company, "HTFC Corp." (the Housing Trust Fund Corporation Corporation?), is a sub-prime mortgage lender, so the similarity to the state agency’s name is surely just a remarkable coincidence.
The court also found that Wider "proudly expressed his intent to frustrate his examination," made his own legal objections, and usually provided intentionally unhelpful answers when he did answer, all of which was frequently delivered with "a gleeful smirk" at the camera. (Personally, I think smirking alone should be actionable, let alone doing it gleefully.)
Wider’s counsel took a shot at defending this conduct. Among other things, counsel argued that it was justified because Wider was just reacting to "provocative and accusatory" questions. "This argument is simply astonishing," said the judge, pointing to this exchange as an example:
Q. This is your loan file. What do Mr. and Mrs. Fitzgerald do for a living?
A. I don’t know. Open it up and find it.
Q. Look at your loan file and tell me.
A. Open it up and find it. I’m not your [expletive] [expletive]. . . . [S]hut the [expletive] up. . . You want me to look at something, you get the document out. Earn your [expletive] money [expletive]. Isn’t the law wonderful? Better get used to it. You’ll retire when I’m done.
The court also criticized the attorney who represented Wider at the deposition, for failing to intervene or suggest an adjournment, and for actually tending to endorse Wider’s conduct by "chuckling" at it and daring opposing counsel to file a motion to compel.
Which he did, of course. Wider and the attorney were sanctioned and ordered to pay $29,322.61, for which they are jointly and severally liable. As the WSJ calculated, that is approximately $367 per F-word or variant thereof.
Link: Law Blog – WSJ.com