WILLIAM V. GALLO, Magistrate Judge.
Incivility is a scourge upon the once-venerable legal profession and has unfortunately become increasingly more rampant in the profession in recent years. See generally Lasalle v. Vogel, 36 Cal. App. 5th 127 (Cal. Ct. App. 2019) (lamenting the state of the modern legal profession and discussing its degradation through the years). In today's combative, battle-minded society, the lay perception of a "good" attorney is someone who engages in the obstreperous, scorched-earth tactics seen on television and makes litigation for the opposing side as painful as possible at every turn. However, outside the fictional absurdities of television drama, attorneys in the real world—presumably educated in the law and presumably committed to upholding the honor of the profession-should know and behave much more honorably.
When unchecked, incivility further erodes the fabric of the legal profession. Judges rightfully expect and demand more of officers of the court, and rules exist to ensure that lack of civility does not hinder litigation and does not go unpunished. Thus, Courts are equipped to address incivility under appropriate circumstances. This case sadly presents the Court with such an opportunity—to address the atrociously uncivil and unprofessional conduct of an attorney whose behavior wantonly and unnecessarily multiplied proceedings and aggressively harassed opposing counsel far beyond any sensible measure of what could be considered reasonably zealous advocacy for a client. Such behavior before this Court will not be chalked up to being simply "just part of the game." As explained below, this Court GRANTS Plaintiff's motion for sanctions in the amount of $28,502.03.
Once the parties finally settled upon their current counsel earlier this year after a total of five sets of attorneys between them, the stage was set for the sanctions motion now pending before the Court. On January 9, 2019, the Court held a second Case Management Conference in which defense counsel Julie Chovanes participated the day after the Court approved her request to appear pro hac vice. (Doc. Nos. 52-53; 55 (Transcript of CMC).) Although the Court had allowed prior counsel to conduct discovery, they apparently had failed to take much discovery, and new Plaintiff's counsel, James Ryan, requested additional time to do so. Accordingly, this Court granted Plaintiff's motion to amend the original Scheduling Order and allowed the parties to take fact discovery until April 8, 2019 and take expert discovery until June 17, 2019. (Doc. No. 54 ¶ 7.)
A short few weeks later, the parties called this Court to mediate a discovery dispute. (Doc. Nos. 57-60.) However, the disputes did not end there, and the Court held additional discovery conferences on February 26, 2019 (Doc. Nos. 67-68); March 22, 2019 (Doc. Nos. 74-75);
As a result of these numerous disputes, the Court spent hours on teleconferences with Chovanes and Ryan, hearing arguments, and generally observing the demeanor and tenor of both attorneys. Because the Court was able to observe the attorneys' behavior on these conferences, the Court can now confirm that both of their demeanors and behavior during the deposition at the heart of the pending sanctions motion was consistent with how they conducted themselves during the discovery conferences. The Court observed Plaintiff's attorney Ryan as consistently even-keeled and respectful—though at times frustrated—as he argued in favor of his client. He did not raise his voice, engage in any attacks against the other side or opposing counsel, and dispassionately argued his positions. Defense counsel Chovanes, however, displayed a wholly different demeanor. The Court witnessed Chovanes repeatedly raise her voice at Ryan and even the Court, continuously interrupt Ryan and this Court, and characterize Plaintiff's case as a "garbage case" on multiple occasions. Outside the presence of this Court, Chovanes repeatedly failed to meet and confer about discovery disputes, often stating she would respond at a later date but then failing to respond despite multiple efforts to follow up by Ryan. At times, Chovanes also simply ignored Ryan's meet and confer communications. Chovanes's general demeanor during teleconferences with the Court was consistently flippant, overly-aggressive, truculent, and quick to confrontation.
One aspect of the fact discovery process that led to a dispute was the deposition of Margaret Gardner, the founder and designated Rule 30(b)(6) witness for Defendant. Leading up to Gardner's deposition and the May 10, 2019 Mandatory Settlement Conference, Defendant sought to limit her deposition due to her health concerns. After receiving a physician's note, the Court ordered that the deposition take place in Philadelphia for seven hours and that it proceed in two-hour increments with 30-minute breaks. (Doc. No. 82.) Also at that discovery conference on April 10, 2019, Chovanes indicated she wished to seek a protective order to limit the scope and length of Gardner's deposition given Chovanes's belief that the deposition should not take "more than a few hours." The Court provided Chovanes the opportunity to file a motion for a protective order and set an April 15, 2019 deadline to do so. (Doc. No. 82 ¶ 2.) However, although Chovanes referenced filing a motion for a protective order several times, the motion was never filed and so a protective order never issued.
The deposition of Margaret Gardner took place on May 3, 2019 in Philadelphia, and Chovanes quickly set the tone for the day.
Approximately two hours into the deposition, the parties successfully contacted this Court for a discovery conference regarding Chovanes's objections and instructions to Gardner. (Doc. No. 93-6 at 120:7-128:7.) Up to that point, Chovanes had repeatedly objected to Ryan's questions on relevance grounds, objected that his questions exceeded the scope of the Rule 30(b)(6) deposition notice, and objected that some of the questions were outside the scope of discovery. Based on these objections, Chovanes had repeatedly instructed Gardner to not answer Ryan's questions. The Court instructed the parties to continue the deposition, preserve objections, and told the parties that objections based on scope and relevance were not proper bases to instruct Gardner to not answer questions. The deposition thus continued, and the parties did not contact the Court again that day.
After the discovery conference with the Court, Chovanes stopped instructing Gardner to not answer questions but continued to interrupt and make objections of various kinds. She also continued to relentlessly argue with Ryan, constantly trying to hurry up his questioning, making frivolous objections, making objections that made no sense in the context of a deposition, and instructing Ryan how he should ask questions and conduct the deposition.
The deposition was recorded by a videographer and a stenographer. As part of its sanctions motion, Plaintiff submitted video clips and the entire transcript of the deposition. Plaintiff divided the interruptions into six categories and provided 128 video clips encompassing 133 examples of behavior that Plaintiff contends cumulatively warrant sanctions.
After the deposition, Ryan sought and was granted leave to file a motion for sanctions after his attempts to meet and confer with Chovanes about sanctions failed. Ryan now seeks $28,502.03 in sanctions pursuant to Federal Rule of Civil Procedure 30(d)(2), 28 U.S.C. § 1927, and the court's inherent power to sanction.
In response, Defendant contends sanctions are not warranted because Ryan was able to ask questions and concluded the deposition by confirming he had no further questions. Defendant argues Chovanes's conduct did not result in prejudice to Plaintiff. Continuing Chovanes's personal attacks on Ryan at the deposition, Defendant's opposition papers contend that Ryan was unprepared near the end of the deposition because of the pauses between his questions, he was "wasting time," and contends it was proper for Chovanes to note these things for the record to protect Gardner from "further abuse." (Doc. No. 94 at 4-5.) With respect to the amount of sanctions Plaintiff seeks, Defendant does not address any specific components of the sanctions amount, instead asserting that there's a lack of documentary evidence to support the entire amount. Defendant also notes a discrepancy with respect to the date on which Ryan travelled to Philadelphia, though there is no dispute that he did in fact travel there for the deposition.
The Court held a hearing on the sanctions motion on August 16, 2019 and heard argument from Chovanes and Ryan. Chovanes continued to deny any impropriety, did not present any new evidence, and did not challenge any specific monetary component of the amount of sanctions Plaintiff seeks. She did not defend her conduct. She did not show any remorse. And she again characterized Plaintiff's case a "garbage case." This Order follows.
Under Rule 30(d)(2), a 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." Rule 30's advisory committee notes make clear that the sanction may be imposed on parties and attorneys alike. District courts within the Ninth Circuit have held that Rule 30(d)(2) sanctions do not require a finding of bad faith. See, e.g., BNSF Ry. Co. v. San Joaquin Valley R.R. Co., No. 08CV1086-AWI-SMS, 2009 U.S. Dist. LEXIS 111569, at *9 (E.D. Cal. Nov. 17, 2009); Robinson v. Chefs' Warehouse, No. 15CV5421-RS(KAW), 2017 U.S. Dist. LEXIS 40824, at *7 (N.D. Cal. Mar. 21, 2017), on reconsideration, 2017 U.S. Dist. LEXIS 93339 (N.D. Cal. June 16, 2017).
Under 28 U.S.C. § 1927, any attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. Section 1927 thus provides the Court the authority "to hold attorneys personally liable for excessive costs for unreasonably multiplying proceedings." Gadda v. Ashcroft, 377 F.3d 934, 943 n.4 (9th Cir. 2004).
Section 1927 indicates that actions that multiply the proceedings must be both unreasonable and vexatious, and the Ninth Circuit has also stated that recklessness alone will not suffice; what is required is recklessness plus something more—for example, knowledge, intent to harass, or frivolousness. See Thomas v. Girardi, 611 F.3d 1027, 1061 (9th Cir. 2010) (reckless plus intentionally misleading); Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216, 1221-22 (9th Cir. 2010) (cumulative acts over five years evidenced a pattern of recklessness and bad faith warranting sanctions); B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107 (9th Cir. 2002) (recklessness plus knowledge); Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001) (recklessness plus frivolousness, harassment, or improper purpose). "Tactics undertaken with the intent to increase expenses, or delay, may also support a finding of bad faith." New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989) (internal citations omitted). Indeed, "[e]ven if an attorney's arguments are meritorious, his conduct may be sanctionable if in bad faith." Id. (citation omitted).
The Supreme Court in Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), delivered the definitive summary of the bases on which a federal court may levy sanctions under its inherent power. The Court confirmed that federal courts have the inherent power to levy sanctions, including attorneys' fees, for "willful disobedience of a court order . . . or when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. . . ." 447 U.S. at 766 (internal quotation marks and citations omitted). The Court also noted that a court "certainly may assess [sanctions] against counsel who willfully abuse judicial processes." Id. The Court later reaffirmed the Roadway principles in Chambers v. NASCO, Inc., 501 U.S. 32 (1991), emphasizing the continuing need for resort to the court's inherent power because it is "both broader and narrower than other means of imposing sanctions." 501 U.S. at 46. On the one hand, the inherent power "extends to a full range of litigation abuses." Id. On the other, the litigant must have "engaged in bad faith or willful disobedience of a court's order." Id. at 46-47. In Chambers, the Supreme Court left no question that a court may levy fee-based sanctions when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, delaying or disrupting litigation, or has taken actions in the litigation for an improper purpose. Id. at 45-46 & n. 10.
As is relevant here, "[b]efore awarding sanctions under its inherent powers . . . the court must make an explicit finding that counsel's conduct constituted or was tantamount to bad faith." Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (internal quotations and citation omitted). The Ninth Circuit has extensively explained what constitutes bad faith in the context of "inherent powers" sanctioning authority:
Fink v. Gomez, 239 F.3d 989, 992-94 (9th Cir. 2001).
The Court first sets forth Chovanes's specific unprofessional, obstructive, harassing, frivolous, and willful conduct. The Court thereafter concludes Chovanes acted in bad faith and that sanctions are warranted based on the totality of her conduct.
Under Rule 30, an attorney may instruct a client 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)" to terminate or limit the deposition on grounds of bad faith, oppression, and the like. Fed. R. Civ. P. 30(c)(2), (d)(3). If none of the enumerated objection grounds exists, the objection may be noted on the record, "but the examination still proceeds; the testimony is taken subject to any objection." Id. at 30(c)(2).
1. As Plaintiff argues, on at least approximately 39 occasions, Chovanes did not adhere to Rule 30's limits on instructing a deponent to not answer or adhere to its procedures for addressing possible bad faith questioning. Instead, Chovanes cited impermissible grounds and did not allow Gardner to answer various basic questions despite preserving the objections on the record. The vast majority of these instances occurred before the parties' discovery conference with this Court and included instances where no reasonable attorney would object or instruct a witness to not answer a question. For example, Chovanes instructed Gardner to not answer the following benign foundational questions that any competent attorney would ask in the early stages of a deposition:
2. In addition to these simple background questions, Chovanes instructed Gardner to not answer several questions based on her erroneous assertion that they were beyond the scope of the Rule 30(b)(6) deposition notice and thus not subject to proper questioning. At the beginning of the deposition, Chovanes demanded that Ryan produce the deposition notice and proclaimed that deposition questioning would be limited to the topics in the notice. (Doc. No. 93-6 at 13:5-8 ("I would suggest . . . you get the 30(b)(6) notice out, because you're not going to be able to go anywhere beyond that."); 14:2-4 ("But right now let's stick to the 30(b)(6) notice. Okay? Otherwise, you're not going to be getting answers.")) Chovanes even ludicrously contended Ryan could not ask basic foundational background questions because the deposition notice did not include such a category:
(Id. at 23:24-24:7.) The deposition transcript contains several other instances where Gardner was instructed to not answer based on "scope" objections, all of which were based on Chovanes's contention that any question not specifically tethered to one of the categories in the deposition notice was beyond the scope of the notice and thus beyond the scope of the deposition. (See, e.g., id. at 28:5-10 (question about how to spell a product Gardner had mentioned in testimony); 31:3-8 (question about other products Defendant may have sold); 46:22-48:15 (Chovanes attempting to prevent questions related to inventory topic that was listed in the deposition notice); 51:14-22.)
Chovanes's objections here were baseless, of course, because Rule 30(b)(6) deposition notices do not limit the examiner to the topics listed in the notice. Although a party noticing a deposition pursuant to Rule 30(b)(6) "must describe with reasonable particularity the matters on which the examination is requested, . . . the `reasonable particularity' requirement of Rule 30(b)(6) cannot be used to limit what is asked of the designated witness at a deposition." ChriMar Systems Inc. v. Cisco Systems Inc., 312 F.R.D. 560, 563 (N.D. Cal. 2016) (emphasis added); see also Moriarty v. Am. Gen. Life. Ins. Co., No. 17CV1709-BTM(WVG), 2019 US. Dist. LEXIS 62041, at *8 (S.D. Cal. Apr. 10, 2019) (Gallo, J.). "The 30(b)(6) notice establishes the minimum about which the witness must be prepared to testify, not the maximum." ChriMar Systems Inc., 312 F.R.D. at 563 (emphasis added); see also see also Moriarty, 2019 US. Dist. LEXIS 62041, at *8. Thus, deposition notice categories are simply the basic informational categories that a corporate representative should familiarize herself with to competently answer questions on behalf of the entity—they do not serve as handcuffs to limit the examiner from asking, for example, basic foundational questions about the deponent or the entity itself.
Accordingly, Chovanes's unrelenting attempts to limit Ryan to the categories specified in the deposition notice were untethered to any legal authority or principle and were utterly baseless. Chovanes then compounded the error by instructing Gardner to not answer questions because, as explained below, "scope of deposition notice" is not a proper basis upon which a deponent can be instructed to not answer.
3. Chovanes also instructed Gardner to not answer various questions based on relevance grounds. (See, e.g., Doc. No. 93-6 at 31:3-8; 45:10-20; 50:6-51:1; 53:13-22; 53:24-54:4; 60:4-61:8; 68:18-69:12; 73:8-12; 75:22-76:2; 78:11-15; 118:10-120:1.) A sub-set of Chovanes's relevance-based objections were based on Chovanes's incorrect assertion that this Court had limited the scope of all discovery to matters after May 2014. Chovanes's reference to the May 2014 "cutoff" was related to an Order this Court issued on February 8, 2019 following a discovery conference regarding disputed written discovery responses. (See Doc. No. 60.) Although the language of that Order seemed to limit all discovery to the time period after May 2014, the Court later issued a second written Order, clarifying that the first Order was limited to the written discovery at issue in that dispute— not discovery in general. (See Doc. No. 73.) At the deposition, Ryan was prepared, had a copy of the clarifying Order in hand, and he read the relevant portions to Chovanes. (Doc. No. 93-6 at 21:8-23.) Chovanes then shifted tactics, stating she recalled this Court orally limiting discovery to events after May 2014 during a telephonic discovery conference— but she could not identify when that occurred. (Id. at 21:25-22:11.)
This Court has never limited the scope of all discovery as Chovanes asserted. However, this did not deter her from repeatedly instructing Gardner to not answer questions based on this erroneous reasoning—even after Ryan had read her the clarifying Order. (See, e.g., id. at 45:16-20 ("Objection. Why is it relevant? This is dated `08 and we're talking about `14 and beyond. Objection. Don't answer that question. Move ahead."); 45:22-46:1 ("You can answer with regard to anything after May of 2014."); 46:15-18 ("You disagree with it, but she's not going to answer anything before May of 2014. [I]t's beyond the scope and it's not within the judge's order."); 52:13-17; 60:4-61:8 (Chovanes "foreclosing" questioning); 68:10-69:12 (question about other persons who may have maintained records related to the subject product); 70:15-18 ("I want to get to areas the Court said we should get to, not to areas that are irrelevant and before May of 2014."))
Even if the above objections were factually accurate, Chovanes's instructions to not answer the questions based on relevance grounds nonetheless would have run afoul of basic principles of objecting during depositions. The plain and simple language of Rule 30 makes clear that
Fed. R. Civ. P. 30(c)(2); see also Brincko v. Rio Properties, Inc., 278 F.R.D. 576, 581 (D. Nev. 2011) ("The remedy for oppressive, annoying and improper deposition questioning is not simply to instruct a witness not to answer."); Detoy v. City & Cnty. of San Francisco, 196 F.R.D. 262, 365 (N.D. Cal. 2000) ("As a rule, instructions not to answer questions at a deposition are improper."); Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 11(IV)-A § 11:1565 ("Rule 30(c)(2) renders `relevancy' objections meaningless in most depositions. The deponent must even answer questions calling for blatantly irrelevant information `subject to the objection.'"). Although Chovanes at times instructed Gardner to not answer based on privilege, the vast majority of Chovanes's instructions to Gardner did not fall within the Rule's enumerated bases and violated this exceedingly simple rule.
4. Although the above categories constituted the bulk of the inappropriate objections and instructions to not answer, there are other violative examples sprinkled in the transcript:
In addition to at times being nonsensical, none of these refusals to allow Gardner to answer complied with Rule 30(c)(2).
In sum, the transcript contains at least 39 instances where Chovanes violated Rule 30(c)(2) by instructing Gardner to not answer questions based on improper grounds.
In addition to the above, there can be no question that Chovanes deliberately frustrated, delayed, and impeded Gardner's deposition in other ways. Under Rule 30(c)(2), an objection "must be made concisely in a nonargumentative . . . manner." However, Chovanes repeatedly violated this rule by making objections that were an attempt to instruct Ryan how to pose questions and disrupted the flow of the deposition. In many instances, Chovanes's objections were verbose, argumentative, accusatory, and anything but concise—all in violation of Rule 30(c)(2). Chovanes routinely engaged in speaking objections and then extensively argued with Ryan when he attempted to clarify or meet and confer about the objections. The following are representative examples from the 39 instances of this conduct identified by Plaintiff:
Under Rule 30(d)(2), sanctions may be imposed for impeding, delaying or frustrating the fair examination of the deponent. Chovanes did all of these things by initiating or attempting to initiate unnecessary and frivolous colloquy and unnecessarily "noting" things during the deposition. Plaintiff identifies fifteen instances during which Chovanes initiated or attempted to initiate unnecessary colloquy. These unnecessary interruptions and discussions prolonged the deposition and served to continually harass Ryan. Some examples include:
Plaintiff also identifies seventeen instances when Chovanes unnecessarily noted various things for the record. However, the Court isn't particularly concerned with many of these instances. Although many were gratuitous and certainly pointless, some happened when Ryan was calling his client or when the unnecessary "noting" did not disrupt the flow of the deposition. However, the following instances when Chovanes unnecessarily made objections or comments did disrupt and delay the deposition:
None of the above colloquy served any reasonably practical purpose and served only to disrupt Ryan's questioning and delay the deposition further. Chovanes's petty quibbling about photographs that had been filed in this case by her own client were frivolous and served no useful purpose. Nor did her objections about Ryan's use of those photographs during the deposition based on them being used out of context simply because the photographs had originally been used as exhibits to one of Chovanes's client's court filings. What these continuous, unnecessary interruptions did do, however, was to systematically eat away at Ryan's allotted seven hours of deposition, disrupt Ryan's line of thinking and flow of questioning, and continue to obstruct the deposition.
Under Rule 30(c)(2), an objection "must be made concisely in a . . . nonsuggestive manner." However, Chovanes repeatedly violated this rule by making suggestive objections that subtly coached Gardner how to answer Ryan's questions. The following are some representative examples.
Like Chovanes's other objections quoted throughout this Order, these objections lacked conciseness. While it appears Gardner at times did not heed Chovanes's comments, the objections nonetheless suggestively coached Gardner on how to answer Ryan's questions.
Plaintiff also identifies two instances of Chovanes's discourteous behavior towards Ryan, one of which was an inexplicable outburst during which Chovanes stood and loomed over the examination table, aggressively accused Ryan of threatening Gardner, and then left the deposition room for a break. This bizarre incident occurred after Ryan declined Chovanes's request to take a break. Ryan instead stated he wished to proceed to finish the two-hour block of time since the Court had previously ordered the deposition proceed in two-hour increments with thirty-minute breaks. When Chovanes persisted, Ryan simply asked Gardner if she needed a break and likely would have taken a break had Gardner said she needed one. The bizarre outburst proceeded as follows:
(Doc. No. 93-6 at 80:19-83:7.) This troubling tirade began with Ryan's seemingly benign question to Gardner, asking whether she needed to take a break. As with the rest of Chovanes's conduct during this deposition, the cold, typed words of the transcript truly do not do justice to the tone and tenor of Chovanes's sustained harassment of Ryan. This Court has reviewed the video clip of the above exchange. The video demonstrates that Ryan's voice was calm, relaxed, and non-threatening in any way. He also said nothing to Gardner that could remotely be considered threatening to trigger Chovanes's grossly disproportionate response.
What the Court can surmise from this interaction following Chovanes's rebuffed request to take a break is that it may have been fabricated in order to take the break. This appears to be the only reasonable explanation because nothing Ryan said could have warranted the inexplicably disproportionate response from Chovanes. However, once Chovanes reacted in this manner, she was able to leave the room and take the break she had requested under the guise of some feigned outrage in response to Ryan's completely benign and reasonable question to Gardner about her need for a break. Based on the transcript, this appears to be the only reasonable explanation for Chovanes's outburst. It certainly cannot be justified as a reasonable, rational response to anything Ryan said or did. In any event, such irrationally aggressive conduct toward opposing counsel is precisely the type of disturbing, unprofessional behavior that has no place in the legal profession. This conduct further served to disrupt the deposition and perpetuate the incredibly tense, rancorous atmosphere Chovanes had singlehandedly created from the opening minutes of the deposition.
In addition to the above categories and examples Plaintiff cited, the Court's review of the full deposition transcript revealed many more instances of Chovanes's obstructive behavior.
1. For example, Chovanes constantly instructed Ryan to "hurry up," accused him of wasting her and Gardner's time, and generally attempted to rush Ryan's questioning. (See, e.g., Doc. No. 93-6 at 14:24-15:1; 30:3; 33:18-19 ("Why are you wasting our time?"); 35:3; 48:16-18 ("Ask questions that are acceptable. Go. Otherwise, we're going to leave because you're wasting our time."); 50:16; 58:21-24 ("Yeah, I know you think it's important to waste our time, but we're trying to get out of here and with concern — out of courtesy for everyone's time."); 60:25; 74:18-20 ("You can answer, but that's the last question, because this is just wasting everyone's time."); 81:13; 85:25-86:1; 170:24; 214:8-9.) These comments by Chovanes are quite puzzling because Ryan was entitled to question Gardner for 7 hours regardless of how quickly or slowly he questioned her. Thus, these repeated comments by Chovanes served no other purpose than to harass and antagonize opposing counsel and to perpetuate the hostile atmosphere of the deposition.
2. Additionally, Chovanes made at least thirty "asked and answered" objections. (Doc. No. 93-6 at 70:4-6; 77:12-13; 77:19-20; 79:21-22; 85:23-24; 86:9-10; 87:13-14; 90:5-6; 92:13-14; 99:23-24; 105:5-6; 114:7-8; 132:22-23; 137:19-20; 138:1-2; 138:16-17; 161:13-14; 161:24-25; 162:7-8; 171:8-9; 173:11-12; 205:11-12; 210:3-4; 217:15-16; 225:20-21; 225:24-25; 228:12-19; 229:2-3; 237:9-10; 278:23-279:1.) In the context of a deposition, "asked and answered" objections are utterly pointless and serve no purpose.
3. Then there were eleven instances on which Chovanes simply objected by saying "objection" without specifying any basis for the objection. (Doc. No. 93-6 at 117:8; 191:20; 197:12; 197:17; 211:18; 236:19; 244:6; 261:13; 261:24; 262:4; 276:16.) Without a specific basis for an objection, "objection" alone is a pointless interjection and can serve no other purpose but to interrupt. These objections were consistent with Chovanes overall obstructive modus operandi in this deposition.
4. And then there were eighteen objections with a basis identified where the basis was nonsensical in the context of a deposition or intentionally obtuse about the meanings of words and could only be intended to obstruct and harass Ryan. Also included are argumentative "objections." These instances included:
The deposition transcript contains additional examples, and the Court could go on. Suffice it to say that all of the above representative examples of various pointless or nonsensical objections highlight Chovanes's unrelenting interruptions of Ryan's questioning, interposing objections that either made no sense or served no practical purpose in the context of a deposition (as opposed to a trial). For example, there is no planet in any solar system on which the word "how" is ambiguous in the context of Ryan's final question above. The same is true for the word "long" in the first example cited above.
5. Finally, the transcript contains examples of discourteous conduct towards Ryan that interrupted and delayed the completion of the deposition. Chovanes disparaged Ryan and his case throughout the deposition, calling the case "garbage" (Doc. No. 93-6 at 35:1-2, 68:24) or maligning him personally and the nature of his questioning (see, e.g., id. at 118:3-4 ("Again, you're belaboring the witness, you have so many `belief' questions."); 228:10-13 ("If you keep asking questions that are objectionable, we're really not getting anywhere. So let's go, come on Counsel. Ask questions that are good ones."); 267:16-17 ("Ask a real question with a noun, a topic and date.")).
The Court has painstakingly enumerated numerous examples that collectively demonstrate Chovanes systematic impeding, delaying, and frustrating the fair examination of Gardner. From the opening moments of the deposition, Chovanes adopted a hostile tone and posture against Ryan and then unrelentingly proceeded to make Ryan's examination as difficult as possible. Chovanes employed all of the categories of tactics identified above to continuously interrupt the deposition and mercilessly harass Ryan. Every baseless objection, diatribe, argumentative comment, and petty argument cumulatively compounded to greatly extend the time spent in deposition. And every baseless interruption identified above served to harass Ryan, shift his focus away from the purpose of the deposition and towards battling Chovanes, and greatly frustrated the fair examination of Gardner. Rather than being able to focus on Gardner and this case, Ryan was continuously drawn into squabbles with Chovanes as the seven hours allotted for the deposition quickly burned away. Accordingly, this Court easily finds sanctions upon Chovanes are appropriate under Federal Rule of Civil Procedure 30(d)(2).
Under 28 U.S.C. § 1927, any attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. Section 1927 thus provides the Court the authority "to hold attorneys personally liable for excessive costs for unreasonably multiplying proceedings." Gadda v. Ashcroft, 377 F.3d 934, 943 n.4 (9th Cir. 2004). Here, the Court finds Chovanes unreasonably and vexatiously prolonged Garner's deposition far longer than necessary and far longer than it would have taken without Chovanes's incessant, baseless, petty interruptions and drawing Ryan into unnecessary, frivolous disputes and discussions. Indeed, the transcript is replete with Chovanes's misconduct, and it appears Chovanes spoke more at the deposition than Garner spoke. Without Chovanes's conduct, the deposition would have concluded far sooner and would have been a far more productive and pleasant experience for everyone involved, including Garner. Interruptions and objections could be justified if they could reasonably add value to representing a client in a deposition. However, Chovanes's frivolous conduct added no such value and instead created a highly corrosive atmosphere that never should have been created. Because Chovanes's conduct was often baseless, it was unreasonable and vexatious.
Finally, sanctions are appropriate under the Court's inherent power because Chovanes's conduct went far beyond the multiplication of proceedings that Rule 30(d)(2) and section 1927 address. The Court's inherent power "extends to a full range of litigation abuses." Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991); see also Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001) ("Under both Roadway and Chambers, . . . the district court has the inherent authority to impose sanctions for bad faith, which includes a broad range of willful improper conduct.") In addition to wastefully prolonging and multiplying proceedings at the Gardner deposition, Chovanes engaged in a wide range of harassing and abusive behavior that this Court finds intolerable. As explained immediately below, this behavior was carried out in bad faith and with the intent to obstruct the fair examination of Gardner.
For the purposes of both section 1927 and inherent power sanctions, this Court finds Chovanes acted in bad faith. Because this Court has had extensive experience with Chovanes and Ryan over the past seven months over many hours of hearing arguments and a Mandatory Settlement Conference, this Court has become very familiar with both attorneys. See generally Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990) ("Deference to the determination of courts on the front lines of litigation [that sanctions are warranted] will enhance these courts' ability to control the litigants before them."); see also Aloe Vera of Am., Inc. v. United States, 376 F.3d 960, 965, 966 (9th Cir. 2004). Based on this Court's extensive experience with Chovanes, her conduct at the deposition was hardly surprising. It was simply a drastically amplified version of the conduct that the Court had witnessed first-hand in the past. Given the totality of the deposition transcript, this Court finds that Chovanes acted with knowledge, with the intent to harass Ryan, and to delay and obstruct the questioning of Gardner as much as possible. The Court further finds that her conduct was frivolous and that she acted with subjective bad faith.
Chovanes demonstrated a knowing intent to harass Ryan based on the long-held belief that this case is "garbage"—a belief that Chovanes has repeated multiple times during on-the-record discovery conferences before this Court prior to the deposition and even during the very hearing the Court held on this sanctions motion. Based on that long-standing belief, Chovanes unleashed her harassing, obstructive behavior full force against Ryan during a critical moment in Plaintiff's case—the deposition of the founder of Defendant that could potentially yield valuable information for Plaintiff's case. The transcript amply demonstrates that Chovanes's conduct was not inadvertent, accidental, or negligent—it was knowing, intentional, and willful. And the transcript is littered with example after example of frivolous objections, comments, arguments, and attacks—many so ludicrous that any competent attorney would refrain from employing. In addition to the frivolity of the objections, comments, and interruptions, Chovanes's improper purpose is plainly evident in the transcript. She intended to harass and obstruct Ryan's questioning as much as possible based on the staunch belief that this is a "garbage" case brought to harass Defendant. Obviously, the more frequently Chovanes interrupted Ryan and engaged him in distractions and argument for extended periods, the more of the seven hours allotted for Gardner's deposition would be consumed by Chovanes speaking rather than Gardner answering questions that could harm Defendant's case. And that is precisely what happened here, as the transcript is littered throughout with Chovanes's wasteful, frivolous interruptions.
In her defense, all Chovanes can muster is that Plaintiff suffered no prejudice despite her conduct because Ryan was ultimately able to ask his questions and stated at the end of the deposition that he had no further questions. Chovanes has never acknowledged that her conduct was in any way improper. Unfortunately, Chovanes's weak defense falls flat because sanctions under the Court's inherent powers are available even if an attorney's conduct was not frivolous if that conduct was for an improper purpose. Fink v. Gomez, 239 F.3d 989, 992-94 (9th Cir. 2001). And for purposes of section 1927, the relevant inquiry is not whether the victim suffered prejudice, but whether the improper tactics were intended to increase expenses or delay proceedings. See New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989) ("Tactics undertaken with the intent to increase expenses, or delay, may also support a finding of bad faith.").
Here, of course, Chovanes's conduct was frivolous and, as the Court concludes above, her conduct was undertaken for an improper purpose to harass, obstruct, and delay the orderly questioning of Gardner to which Ryan was entitled. Chovanes's repeated and unyielding interference with Ryan's efforts to conduct a professional, orderly deposition revealed her true motive—to improperly frustrate Gardner's deposition. This obstructive tactic, which has no place in the legal process, was conceived and executed in bad faith.
Chovanes accordingly violated the basic standards of professionalism expected of all attorneys appearing before this Court. See S.D. Cal. Civ. L.R. 83.4 Chovanes was not courteous or civil; acted in a manner detrimental to the proper functioning of the judicial system; disparaged opposing counsel; and engaged in excessive argument, abusive comments, and delay tactics at Gardner's deposition. The sheer volume of Chovanes's antics belie any notion of mistake or negligent conduct on her part but rather disturbingly reveal a systematic effort to obstruct Ryan for no good or justifiable reason or purpose. Chovanes undeniably acted in bad faith.
Plaintiff seeks a two-fold sanctions award of $7,242.03 in costs incurred by Dianne York, the President of Plaintiff La Jolla Spa MD, Inc., and $21,360 in its attorney's fees incurred for the Gardner deposition and these sanctions proceedings. Although Defendant has now had two opportunities to challenge the propriety or amount of costs and fees, Defendant failed to argue these amounts were either improper or excessive. Defendant's opposition made no such attempt, and Chovanes also made no such attempt at the sanctions hearing. The only objection to these amounts is as follows: "The sworn statements seeking the thousands of dollars lack any back up documents and counsel and his client tell different stories about what happened and their supposed expenses." (Doc. No. 94 at 5.) First, with respect to the "back up documents," the Court finds York and Ryan's sworn declarations sufficient and reliable evidence of their fees and costs. Ryan's declaration sets forth his hourly rate, the time spent on each billing entry, and describes each entry with reasonable particularity to allow the Court to review its propriety. This is common practice for plaintiffs' attorneys who seek fees or sanctions. And York's declaration sets forth sufficient details and supporting documentation to justify the costs incurred. This Court has no reason to doubt the accuracy or veracity of the declarations or the amounts set forth therein.
Second, it is of no moment that the two declarations differ as to the date on which Ryan travelled for the Gardner deposition. Whether he travelled on May 1 or May 2, there is no dispute that he actually travelled to Philadelphia for the deposition. He was there, and he incurred costs and fees to get there. The trivial discrepancy between the declarations does nothing in this Court's mind to discredit the declarations in toto.
Other than the objection discussed above, Chovanes has not provided any other specific basis or challenge to the amount Plaintiff requests in sanctions. Nor has she even argued that sanctions amount is generally excessive. At the sanctions hearing, although the Court specifically addressed Chovanes's failure to do so, she again failed to raise any challenge to the amount or portions thereof. As a result, no reduction is appropriate. See Bylin Heating Sys. v. Thermal Techs., Inc., No. 11CV1402-KJM-KJN, 2014 U.S. Dist. LEXIS 30809, at *13-14 (E.D. Cal. Mar. 10, 2014) (imposing $32,851.29 in sanctions and finding: "In any event, by twice failing to oppose plaintiffs' motion for attorneys' fees and costs after appropriate notice, defendant has waived any argument that the time spent on any particular task, and/or the total number of hours spent on this case, are unreasonable."); see generally Gates v. Rowland, 39 F.3d 1439, 1449 (9th Cir. 1994) (fee opponents failed to meet burden of rebuttal, because opponents failed to point out with specificity any charges that were excessive or duplicative); Columbia Pictures Tel. v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 296 (9th Cir. 1997), rev'd on other grounds, 523 U.S. 340 (1998) (rejecting argument that certain hours should have been excluded, because no specific objection was raised in district court); see also Smith v. Rogers Galvanizing, 148 F.3d 1196, 1199 (10th Cir. 1998) (district court did not abuse discretion in refusing to reduce hours as to which fee opponent made no specific objection); Sheets v. Salt Lake City, 45 F.3d 1383, 1391 (10th Cir. 1995) (fee opponent who argued merely that fee request was exorbitant and duplicative failed to carry burden of opposing fee, and waived issue for purposes of appeal). In any event, the Court has independently reviewed both declarations and requests for sanctions and finds the hourly rate, total amounts, and bases for sanctions reasonable and proper. See Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992) (court has duty "to independently review plaintiffs' fee request even absent defense objections").
Never before in this Court's nearly ten-year tenure have the sanctions the Court imposes today been more fitting and more deserved by an attorney. Chovanes's atrocious conduct at the Gardner deposition in particular fell far below the standard of professional conduct becoming an attorney practicing before this—or any other—Court. There may be a fine line between zealous advocacy and unprofessional conduct, but Chovanes trampled that line long before barreling past it. Chovanes's frivolous, willful, vexatious conduct greatly expanded the Gardner deposition far beyond what the proceedings would have lasted without her unending unjustified interruptions and harassment of Ryan. Plaintiff's motion for sanctions is GRANTED, and Chovanes is sanctioned for the conduct, reasons, and under the authority set forth above. Accordingly:
1. Without reimbursement from Defendant, Chovanes is sanctioned in the amount of $28,502.03 payable to Ryan's trust account
2. Chovanes shall self-report to the State Bar of Pennsylvania
3. Chovanes shall henceforth attach a copy of this Order as an exhibit to any pro hac vice application for admission to practice before the United States District Court for the Southern District of California. This requirement shall have no expiration date and shall remain in effect in perpetuity.
