HOWARD R. LLOYD, Magistrate Judge.
Minor child K.P. was stricken by a rare disease that left him with permanent, severe mental disabilities and well as significant physical impairments. When he grew to school age, he was entitled to special education. During August and September 2013, when he was 11, K.P. was placed in a special education "orthopedic impaired" class at a local public elementary school taught by April Carlson ("Carlson"). He was in Carlson's class for 5 weeks. The time did not go smoothly.
Lisa and Rano Perrizo, K.P.'s parents, bring this lawsuit for themselves as well as on K.P.'s behalf. Plaintiffs allege that during those 5 weeks Carlson deliberately abused K.P. and provoked him to engage in disruptive actions with the aim of getting him removed from her class. K.P. is non-verbal, so Carlson's challenged behavior came to light because one of the aides in Carlson's classroom sent to school authorities a lengthy e-mail (written "anonymously") deploring Carlson's classroom behavior, and especially—in very inflammatory language—how she was treating K.P. Later, a joint protest letter about Carlson's continued presence in the classroom was signed by 4 classroom aides (including the one who sent the earlier e-mail).
The suit is against Carlson, the Santa Clara County Office of Education ("SCCOE") (the provider of special education services to local schools), and also certain SCCOE employees who allegedly failed to prevent or stop Carlson's claimed mistreatment of K.P. There are 11 claims for relief, including some for common law torts and some based on statute (for example, discrimination under the Americans with Disabilities Act) or the Constitution (unreasonable force under the 4th Amendment and deprivation of due process under the 14th Amendment). Basically, the plaintiffs claim that K.P.'s 5 weeks in Carlson's class have damaged him for the rest of his life.
Now before the court are 5 discovery dispute reports ("reports") filed by the plaintiffs. Four of the reports raise claims of misconduct by defense attorney Eric Bengtson ("Bengtson") during his defense of the depositions of 4 of the aides assigned to Carlson's class during the weeks in question. Plaintiffs charge Bengtson with improperly coaching the witnesses and ask for sanctions under Federal Rules of Civil Procedure 30(c)(2) (which requires objections during depositions to be "nonargumentative and nonsuggestive"), and 30(d)(2) (which authorizes sanctions for impeding, delaying, or frustrating a deposition). Plaintiffs raise a related claim that defense counsel should also be sanctioned for disobeying this court's standing order on how discovery disputes must be handled. Finally, the fifth discovery report seeks an order compelling responses to certain interrogatories. Defendants oppose all of the reports and argue that plaintiffs are not entitled to any of the relief they seek.
The deposition of Genevieve Vieira ("Vieira") was taken on February 25, 2016, as was that of Patricia Olague ("Olague"). Ana Henriquez (Henriquez") was deposed on March 4. Natalie Acharya's deposition was begun on March 12 and completed on April 29th. All were aides in Carlson's class. Ms. Acharya ("Acharya") is the one who sent the explosive, anonymous e-mail. Basically, plaintiff's counsel argues that Bengtson engaged in a persistent pattern of coaching each witness by making speaking objections and uncalled for comments and suggestions, all aimed at cueing each witness to not be forthcoming in her testimony (i.e, asking if the deponent understood the pending question, which might be taken as a cue to say "no" even though the witness really did understand it).
Vieira's deposition is 183 pages long. In the report, Teresa Li ("Li"), the plaintiffs' attorney who took the deposition, cites 45 instances of Bengtson's improper coaching. The court has read each of them. Unfortunately, a fair appraisal of many of them depends on the context, and the context is not always apparent.
An objection that a question misstates previous testimony cannot be evaluated without the benefit of knowing what the earlier testimony was (which Bengtson did not rehash as part of his objection). Another problem for the court was that many of the questions that sparked a claimed improper objection depended on whether Li was framing a question that repeated something said in a document (probably the e-mail or the joint protest letter) or changing or mixing up the words in the question from how they appeared in the document. And, most of the cited instances do not, in the court's mind, look at all like argumentative or suggestive "coaching." Consider these examples:
(Dkt. 54, Vieira Depo. at 122:5-10).
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Another problem that the court sees in a good number of these instances is that Li does not always ask very clear questions:
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Nevertheless, Bengtson did step over the line sometimes:
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Patricia Olague's deposition is 306 pages long. The court has been given 111 of those pages, which contain 45 instances of alleged coaching by Bengtson. The court's discussion above about the Vieira deposition applies as well here. Many of the instances here were benign, not at all as Li characterizes them. Some were clearing up confusion sowed by poorly phrased questions from Li. True, some of the objections and comments by Bengtson were not called for, although the court does not get the feeling that he was trying to disrupt the proceeding.
There is one instance that may be worthy of comment, although the court chooses not to quote it because it goes on for 7 pages. Li was pushing a witness to adopt a statement in the anonymous e-mail (that she did not author) characterizing the enclosure that Carlson assembled out of bookcases (to separate K.P. from classmates because of disruptions that otherwise occurred) as a "three by four cell block." (Others called it the "quiet corner.") Olague said she did not know its dimensions. Li wanted more, asking whether she had any reason to disagree with that description. Olague said she did not know how to answer that, and at that point Bengtson asked for a restroom break. Li, apparently concerned that Bengtson was going to coach the witness during the break, refused to go off the record. Bengtson, becoming perturbed, indicated he would not talk to the witness during the break, but Li was not convinced. Maybe Bengtson was going to leave Olague in the deposition room while he went out, and then maybe he changed his mind because of Li's perceived intransigence. It is hard to tell because tempers clearly flared on both sides and professionalism faltered. The court does not know whether Bengtson talked to Olague during the break, or even for sure if a break took place.
Li cites to 49 instances of improper coaching by Bengtson during Acharya's deposition. The court does not know how many pages the deposition ran, but the last cited instance of alleged coaching was on page 274. Once again, most of the objections were appropriate, and again there are some legitimate uncertainties about exactly what was being asked in some of Li's questions. Nevertheless, the court feels Bengtson did now and again cross the line into improper coaching:
(Dkt. 51, Acharya Depo. at 149:13-151:13). It was Acharya's e-mail that used the word "manhandled," so this line of questioning is proper, even though in other testimony Archarya said that "manhandled" was a word she added to the draft of her e-mail at the suggestion of the parent of another student. When Archarya said she did not "exactly" know what the word meant, Li's next question was whether Archarya knew "somewhat" what it meant. Bengtson's comments about that do look like coaching, suggesting that no one could answer a question that he claimed did not make sense. The witness seemed to take the cue. Nonetheless, in the portion of the deposition that immediately followed, Li did elicit from Acharya her understanding of what the word meant.
The Henriquez deposition only went on for 50 pages before Li terminated it for what she felt was continuous coaching by Bengtson. As with other instances, the court is not given the context of the question, but someone must have put in writing or testified that K.P. was "dragged . . . . across the ground" by Carlson. So, Li asked Henriquez whether she had received training to recognize whether dragging a child across the ground was child abuse. Henriquez answered that she did not recall "that being mentioned." Li complained that answer was not responsive to the question about "training." Bengtson opined that the question had been answered and that Li should ask another. Then, Henriquez said, in answer to another question that tried to draw a distinction between "mention[ing]" and "training," that she did not understand the question. Whereupon, Li asked: "What do you mean you don't understand the question." That provoked Bengtson to object that that question was argumentative, which caused Li to take umbrage. A couple of times, Bengtson cut off the witness from trying to explain why she did not understand the question—which he should not have done—and that really irritated Li. Back and forth the two attorneys went until Li called off the deposition. In between the attorneys' squabbling, Henriquez actually did answer Li's inquiry. She testified they were trained to recognize signs of child abuse such as bruises, cuts, or other marks. If she saw someone dragging a child across the floor, her response would depend on what was going on, what the situation looked like to her. She was trained to report abuse if she thought that was what she was seeing, but was not specifically trained that dragging was child abuse. This was not the finest moment of either lawyer. Although Li's questions were not as precise as one would wish to see, Bengtson's reaction to them struck the court as overbearingly intrusive.
Many times, Bengtson's objections were perfectly appropriate. Many times Li's awkwardly phrased questions invited objection. True, once in a while Bengtson did coach the witness and needlessly quibbled over the phrasing of a question. (He might have avoided some of that if he had spent more time preparing the witnesses for giving testimony.) The court feels some remedial action directed to Bengtson is warranted, and that will be explained later in this order. However, the court is not convinced that plaintiff's discovery efforts have been thwarted, or that their case has been badly undermined. Indeed, their case is principally based on the anonymous e-mail and the joint protest letter from the classroom aides. These were not depositions needed to dig out the crucial facts. These depositions could have either driven home the inflammatory language in those documents by getting the witnesses to affirm that language under oath or, if the aides now backed off the inflammatory language, to establish possible grounds for impeachment. Either way, the court thinks the plaintiffs come out all right.
Plaintiffs ask the court to strike defendants' answer and to issue an "evidentiary sanction" (negative inference, issue preclusion?). If plaintiffs were to get the answer stricken, they would not need the evidentiary sanction. Either of these sanctions would ultimately be up to the presiding judge, but on this record, this court will not recommend anything so drastic. Plaintiffs also ask for monetary sanctions (presumably, attorney's fees), but this court declines to award any because they are not warranted by the frequency or severity of Bengtson's missteps.
As a result of a public records request, plaintiffs obtained a cryptic, handwritten note with jottings that appear to refer to abuse, something about feeding or overfeeding, vomiting, Carolina seeing bathroom incidents [Carolina Lluria, principal of special education at a cluster of Santa Theresa schools], and "doing nothing." (Dkt. 55, Ex. 1).
The interrogatories in question ask for the particulars of what the note refers to. No, say defendants. First, they say the note was produced in error and should not have been. Second, they argue that the note describes something happening at another school and has nothing to do with teacher Carlson or K.P. Third, defendants contend that privacy considerations apply to this unnamed student. Nonsense, say plaintiffs. In their view, this might be evidence of a policy or practice by SCCOE of deliberate indifference to students with disabilities. However, there are no
Plaintiffs also seek an award of monetary sanctions for the failure of defendants' lead counsel to meet and confer with plaintiffs' lead counsel over the deposition disputes and the unanswered interrogatories. This is a legitimate grievance. First, some background.
Over many years as a civil litigator and more recently as a judge, the undersigned has concluded that many attorneys are too quick to file a discovery motion rather than go to the effort of sitting down with the other side and attempting to negotiate an amicable solution to their discovery dispute.
And, when junior lawyers are handling discovery (which is often the case when a law firm is involved), they may be inclined in order to establish their mettle to take a very aggressive position when either seeking or resisting discovery.
Also, this court has the assigned responsibility to resolve discovery disputes, if the lawyers cannot work them out, in literally hundreds of cases. There are sometimes so many discovery matters filed that they tax the court's resources.
To address the problems facing the court with discovery disputes, in 2011 the undersigned adopted a Standing Order re: Civil Discovery Disputes ("Standing Order"). It dispensed with noticed motions and substituted a short joint statement to be filed by the parties but only after an unsuccessful face-to-face meeting with lead counsel. The personal participation of lead counsel was of special importance to the court because they are the experienced lawyers whose judgment on when to fight and when to back off should be better than that of less experienced attorneys. Compared to beforehand, the Standing Order has substantially reduced the discovery disputes that are now brought to the court for a ruling.
Early on, long before the fourth deposition, Li was dutifully trying to arrange a meet and confer session between lead counsel for plaintiffs and for defendants.
This case presented exactly the situation contemplated by the Standing Order. Li has 5 years of experience and Bengtson has 9. Peter Alfert ("Alfert"), plaintiffs' lead counsel, and Mark Davis ("Davis"), defendants' lead counsel, each have well over 30 years of experience. The senior lawyers, benefitting from their long experience, could have addressed the friction between Li and Bengtson and worked it out. At least, they should have tried. The Standing Order requires it. Such a meeting never took place, and it was not for lack of effort by Li.
There is no doubt that Bengtson (and, surely, Davis) knew of the lead-counsel-meet-and-confer requirement in the Standing Order. Li brought it up several times. Indeed, the subject even came up in open court at a status conference before the presiding judge on April 25, 2016 (4 days before the second session of Acharya's deposition). Li complained to Judge Davila that discovery disputes had arisen from the depositions, and that she was not getting cooperation from Bengtson about scheduling a face-to-face meeting with lead counsel, a meeting which was a predicate to the filing of the required joint discovery reports which would be addressed by the undersigned. When Judge Davila turned to Bengtson about complying with this court's Standing Order on a lead counsel meeting, Bengtson said: "I'm not sure his order is appropriate in this circumstance." By that statement, he apparently meant that there was no point in having such a meeting. Judge Davila told him: "Get it done. Just get it done."
Bengtson did not get it done. The four deposition dispute reports were filed unilaterality by plaintiffs on May 6, 2016 without the meet and confer having occurred. Defendants' opposition was filed a few days later. In the opposition, Bengtson argued that a meet and confer between lead counsel would have been a waste of time because neither Davis nor Alfert was present at the depositions. Obviously, that argument simply assumes someone who was not at the deposition could not meaningfully discuss what went on. That argument is nonsense. Lead counsel could be briefed by the lawyer who was there. More to the point, they could review the transcripts. They could look at the videos. The undersigned was not at the depositions either, but no one suggests that this court cannot decide whether improper coaching was going on. Not only was a meet and confer appropriate, but it should have been done as soon as problems arose and before further depositions were taken, before the discovery disputes turned into a juggernaut.
Bengtson intimated to Judge Davila at the April 25th hearing that Davis did not have time anytime soon to meet with Alfert. He expanded on that argument in the opposition to the discovery dispute reports by representing that Davis was in "back-to-back-to-back trials" from March 21 until April 29. No particulars are offered. The first two depositions occurred almost a month before March 21, and the other two were also taken well before then. There is no convincing showing made that a meeting could not have been fitted in. The court believes that it did not happen because Bengtson (and, presumably, Davis) decided it was not necessary. This despite the Standing Order, and despite the specific directive from Judge Davila. The court concludes that some remedial action is warranted for defense counsel flouting orders of the court, a decision that adversely interfered with the discovery dispute resolution process.
SO ORDERED.
