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General Electric Company v. Thomas Wilkins

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 20, 2011

GENERAL ELECTRIC COMPANY,
PLAINTIFF,
v.
THOMAS WILKINS, DEFENDANT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MOTION FOR RECONSIDERATION ORDER DENYING DEFENDANT'S

(Doc. 112)

I. INTRODUCTION.

Plaintiff General Electric Company("Plaintiff") proceeds with an action against Defendant Thomas Wilkins ("Defendant") for damages and injunctive relief.

On October 18, 2010, during a hearing on Plaintiff's motion for preliminary injunction, the court orally ruled that Defendant was precluded from offering his own testimony in opposition to Plaitniff's motion due to Defendant's obstructive conduct at his court-ordered deposition. (Doc. 88 at 2).

On November 30, 2010, Defendant filed a document entitled "Reservation of Rights Brief as Requested by Court on October 18, 2010 and Request for Reconsideration" ("Defendant's November 30 Brief"), as well as a declaration signed by Defendant. (Doc. 112). *fn1 Defendant's November 30 Brief asks the court to reconsider its decision to bar Defendant from offering testimony in opposition to Plaintiff's motion for preliminary injunction.

Plaintiff filed opposition to Defendant's motion for reconsideration on December 3, 2010. (Doc. 118). Defendant filed a reply to Plaintiff's opposition on December 14, 2010. (Doc. 123).

II. FACTUAL BACKGROUND.

On October 5, 2010, the court ordered that certain witnesses be deposed regarding the issues raised by Plaintiff's motion for preliminary injunction. (Doc. 55). Defendant Thomas Alexander Wilkins was one of the witnesses subject to the court's October 5 order. Due to the parties inability to agree on logistics, on October 12, 2010, Defendant appeared at the United States District Court in Fresno for his deposition, accompanied by his attorney. Defendant identified himself as "Thomas Alexander Wilkins on behalf of Thomas Wilkins." (Doc. 99, Ex. B at 5)(emphasis added). When the court reporter attempted to administer the standard witness' oath *fn2 to Defendant, Defendant responded by asking the deposition reporter and videographer to agree to "full commercial liability." The following exchange took place:

Reporter Please raise your right hand. Do you solemnly affirm to tell the truth, the whole truth, and nothing but the truth?

Defendant Without prejudice and a full reservation of rights, I will hold all parties here, all agents and groups of agents, in their full commercial liability, including you. What is your name and who do you work for? What is your name and who do you work for. Reporter I'm not here to answer questions. I'm just swearing you in, doing my job.

Defendant Okay. Are you the court reporter?

Reporter: Yes.

Defendant Okay. Do you agree to do your job under full commercial liability?

Reporter Yes Defendant Thank you. Do you agree to do your job under your full commercial liability? And please state your name.

Videographer I do. Dillon Wasserman.

Defendant Thank you Dillon.

Mr. Hanlon Mr. Wilkins, you're here to give a deposition pursuant to court orders. I don't have to make any agreements to you to proceed with that deposition, and I decline to do so.

Defendant Are you referring to me?

Mr. Hanlon I am referring to you, sir. How would you like me to refer to you?

Defendant Thomas Alexander Wilkins.

Mr. Hanlon Okay. Thomas Alexander Wilkins, I am here to take your deposition pursuant to court order. I don't have to make any agreements to proceed, and I decline to do so.

Defendant Your offer is accepted.

(Doc. 99, Ex. B at 5-7). The Reporter attempted to administer the oath a second time:

Reporter Would you please raise your right hand again. Do you solemnly affirm to tell the truth, the whole truth, and nothing but the truth?

Defendant: Without prejudice and a full reservation of rights, I do.

Mr. Hanlon Mr. Schulte, I'm not sure what Mr. Wilkins means by "without prejudice." Either he's under oath or he's not.

Mr. Schulte I agree. He's either under oath or he's not. Mr. Hanlon Mr. Wilkins, do you understand that you're under oath?

Defendant Please define your term "understand."

Mr. Hanlon Are you under oath to tell the truth, the whole truth, and nothing but the truth in this deposition?

Defendant Okay. I am not Mr. Wilkins. I'm Thomas Alexander Wilkins. Offer right back to you. As far as truth, the whole truth, and nothing but the truth, I'm stating, without prejudice and a full reservation of rights, I do.

(Doc. 99, Ex. B at 7-8). The reporter attempted to administer the oath a third time, and once again, Defendant responded by qualifying his oath with the phrase "without prejudice and a full reservation of rights." Neither Defendant nor his attorney explained the meaning of this qualification and its intended effect on Defendant's testimony to Plaintiff's counsel, despite repeated requests. Plaintiff's counsel expressed a desire to involve a magistrate judge, but Defendant's counsel refused:

Mr. Hanlon All right. Let's go off the record. I'm going to see if the magistrate is available.

Mr. Schulte Actually, if you're going to stop the deposition and the deposition is done, we did not come here today to do anything other than participate in a deposition. You have now informed us that unless Mr. Wilkins--

Mr. Hanlon We're still on the record, sir. Please put your microphone back on.

Mr. Schulte :-- answers the way you want him to answer that you're not proceeding today. He didn't give you the answer you wanted, so it appears that we're done. If you want to proceed, lets proceed. If you don't, that's up to you...

Mr. Hanlon All I'm trying to do is have the witness be sworn. Without the witness being sworn...this isn't a deposition. It's just a conversation. I'm trying to make sure we're here for a deposition...

Mr. Schulte Mr. Wilkins has answered how he's comfortable. I'm not going to sit here and change his answers. I suggest you not do the same. Whether you proceed today or not is up to you.

(Doc. 99, Ex. B at 9-11).

At the hearing on Plaintiff's motion for preliminary injunction held on October 18, 2010, Plaintiff brought Defendant's conduct at his deposition to the attention of the court. The court stated that to the extent Plaintiff refused to be deposed, he would not be permitted to offer testimony in opposition to the motion for preliminary injunction:

There is no evidence from defendant before the Court that would be provided by Mr. Wilkins. His refusal to be deposed, the Court will treat as essentially disabling him from presenting evidence himself.

(Doc. 88 at 2). The court noted that Defendant would not be precluded from offering any evidence other than Defendant's testimony. (Id.).

After reviewing the Defendant's deposition transcript in open court and after allowing the parties to argue their respective positions, the court concluded that Defendant's conduct was tantamount to a refusal to be sworn. The court discussed the oath requirement on the record and stated: the law requires an unqualified acknowledgment to tell the truth. And there may not be any magic about the words that are used to do that, but reserving rights in the Commercial Code and international treaties and declaring that he's a free man upon the land and the rest of it, I'm sure you know what I'm talking about, Mr. Schulte, that's not acceptable. (Doc. 88 at 5). *fn3 Defendant's counsel expressed disagreement with the court's assessment of the oath requirement, and the court gave counsel the opportunity to provide legal authority in support of his position. (Doc. 88 at 5). More than six weeks later, Defendant filed a brief purporting to provide authority justifying Defendant's conduct at his deposition.

III. LEGAL STANDARD .

A motion for reconsideration is appropriate where the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there was an intervening change in controlling law. See School Dist. No. 1J v. AC&S, Inc. , 5 F.3d 1255, 1263 (9th Cir. 1993); Osband v. Woodford , 290 F.3d 1036, 1038 (9th Cir. 1999) (en banc). A reconsideration motion should not merely present arguments previously raised, or which could have been raised in a previous motion. See Backlund v. Barnhart , 778 F.2d 1386, 1388 (9th Cir. 1985).

IV. DISCUSSION.

Defendant contends that the court erred in finding that Defendant refused to be deposed and asks the court to court to rehear Plaintiff's motion for preliminary injunction, permit Defendant to testify at the hearing, and reconsider its decision to grant Plaintiff's motion. *fn4 Defendant assails the court's statement during the October 18 hearing that "the law requires an unqualified acknowledgment to tell the truth." (Doc. 112 at 2). The crux of Defendant's argument is that Plaintiff was within his rights to offer his unique qualifications to the oath.

Defendant did not offer a written declaration or testimony in opposition to Plaintiff's motion for preliminary injunction until after the court ruled at the hearing that his conduct at the deposition precluded the court from considering his testimony. Pursuant to the court's October 1, 2010 minute order, Defendant's opposition to Plaintiff's motion for preliminary injunction was due on October 8, 2010. (Doc. 53). Defendant submitted a timely opposition to Plaintiff's motion on October 8 but did not submit his declaration until November 30, 2010, almost eight weeks after his opposition was due and six weeks after the hearing on Plaintiff's motion. Defendant offers no explination for his belated attempt to bolster his opposition with a post-hearing declaration. Even assuming arguendo that there is a good faith justification for Defendant's delay in submitting his sworn declaration, Defendant's declaration is properly excluded pursuant to the Federal Rules of Civil Procedure.

A. The Oath Requirement

Rule 30(b)(5)(iv) requires deponents to give an oath or affirmation at the beginning of all depositions. Fed. R. Civ. P. (30)(b)(5)(iv). "Any statement indicating that the deponent is impressed with the duty to tell the truth and understands that he or she can be prosecuted for perjury for failure to do so satisfies the requirement for an oath or affirmation under [Federal Rule of Civil Procedure] 30(c)." Gordon , 778 F.2d at 1400; accord United States v. Bueno-Vargas , 383 F.3d 1104, 1111 (9th Cir. 2004) ("true test" for whether a declaration is made under oath or affirmation "is whether the procedures followed were such that perjury could be charged therein if any material allegation contained therein is false."). *fn5 Although no special verbal formula is required to comply with Rule 30(c)'s oath requirement, Gordon , 778 F.2d at 1400 (citing Fed. R. Evid. 603), "[a] cleverly worded oath that creates loopholes for falsehood or attempts to create a safe harbor for perjury" is unacceptable, see United States v. Ward , 989 F.2d 1015, 1019 (9th Cir. 1992). *fn6 Simply stated, "clever" qualifications and game playing cannot be countenanced in times of crowded dockets and court case overload.

Defendant's statements and conduct in response to the reporter's repeated good faith attempts to place him under oath evidences that Defendant was not impressed with the unqualified duty to tell the truth and did not reflect his understanding that he could be prosecuted for perjury for failure to do so . To the contrary, Defendant's conduct was evasive, evinced gamesmanship, and created the appearance that Defendant was attempting to create a potential safe harbor for perjury by implicitly threatening to impose "liability" on the reporter who was performing a statutory duty for which the reporter is licensed by the State. *fn7 When the reporter first attempted to administer the oath to Defendant, Defendant sought to avoid giving an affirmative response by threatening to impose commercial liability on the reporter and asking for the reporter's name and employer, which is evidenced on a business card and the deposition transcript itself. (Doc. 99, Ex. B at 6). When Plaintiff's counsel expressed doubt to Defendant's counsel as to whether Defendant had taken the oath, Defendant's counsel stated: "your belief is irrelevant to me," a statement that was vexatious and itself irrelevant. *fn8 (Id. at 7).

In response to the reporter's second attempt to administer the oath, Defendant replied: "without prejudice and a full reservation of rights, I do." (Id. at 7-8). Plaintiff's counsel sought to understand what these qualifications meant by asking for guidance from Defendant's counsel reflecting what Defendant meant by the phrase "without prejudice," noting that "either [Defendant is] under oath or he's not." (Id. at 8). Defendant's counsel responded: "I agree. He's either under oath or he's not." (Id.). *fn9

Plaintiff's counsel then sought to ensure that Plaintiff understood the solemnity and purpose of the oath:

Mr. Hanlon Mr. Wilkins, do you understand that you're under oath?

Defendant Please define your term "understand."

Mr. Hanlon Are you under oath to tell the truth, the whole truth, and nothing but the truth in this deposition?

Defendant Okay. I am not Mr. Wilkins. I'm Thomas Alexander Wilkins. Offer right back to you. As far as truth, the whole truth, and nothing but the truth, I'm stating, without prejudice and a full reservation of rights, I do.

Plaintiff's counsel indicated he was not comfortable with Defendant's ambiguous response and sought guidance from Defendant's counsel as to the meaning of Defendant's statements. Defendant's counsel then stated: "I'm not uncomfortable proceeding today. Whether you proceed or not is up to you." (Doc. 99, Ex. B at 9).

Defendant now contends that his qualifications to the oath were intended to "protect and preserve any rights he may have in his intellectual property" and to prevent "misuse" of his testimony. (November 30 Brief at 3). *fn10 Neither Defendant nor his counsel offer any reason why this explanation was not given to Plaintiff's counsel during the deposition. Further, competent counsel acting in good faith had a duty to advise Defendant that taking the standard witness' oath without his purported qualification would not have jeopardized his intellectual property rights or authorized any party to lawfully use his sworn testimony for improper purposes.

The conduct of Defendant and his counsel expressly communicated that neither was impressed with the solemnity and importance of the oath. The uncertainty created by Defendant's responses to the oath was exacerbated by Defendant's assertion of a purported distinction between "Thomas Wilkins," "Mr. Wilkins," and "Thomas Alexander Wilkins." At the outset of the deposition, Defendant introduced himself as "Thomas Alexander Wilkins on behalf of Thomas Wilkins." (Doc. 99, Ex. B at 5)(emphasis added). He refused to be addressed as Mr. Wilkins. Later in the deposition, Defendant feigned ignorance as to who Plaintiff's counsel was addressing when counsel asked the question: "Mr. Wilkins, do you understand that you're under oath?" (Id. at 7, 8). In light of Defendant's refusal to take the oath as administered, refusal to explain his qualifications to taking the oath, refusal to participate in seeking the assistance of the magistrate judge, and attempt to suggest that his identity was in question, Defendant's conduct at the deposition was vexations, multiplied and delayed the proceedings, and created sufficient doubt whether Defendant intended to offer his testimony under penalty of perjury that it was reasonable for Plaintiff's counsel to interpret the totality of the conduct as a refusal to be sworn. *fn11

B. Cases Provided by Defendant

Defendant cites Gordon , 778 F.2d at 1400 ; Looper , 419 F.2d at 1407; Girouard v. United States , 328 U.S. 61 (1946); and In re Thiesen , 141 Cal. App. 2d 274 (Cal. Ct. App. 1956) as support for his contention that the court erred in construing his conduct as a refusal to be sworn. Gordon provides the applicable standard for oaths in the Ninth Circuit, and Looper was cited as authority for the court's holding in Gordon . 778 F.2d at 1400. Girouard and Theisen concern naturalization oaths and are not relevant here. *fn12

In Gordon , a pro se plaintiff refused to raise his right hand and either "swear" or "affirm" at his deposition because doing so violated his sincerely-held religious beliefs. 778 F.2d at 1401. The Ninth Circuit held that, because the First Amendment required the district court to employ the least restrictive means to place the plaintiff under oath, it was error for the district court to impose the severe sanction of dismissing plaintiff's case due to the plaintiff's refusal to use the specific words "swear" or "affirm." Id .

In Looper , a criminal defendant raised religious objections to the district court's insistence that he place his hand on the bible and appeal to god. 419 F.2d at 1406. After the defendant refused to comply with the district court's directive, the court precluded the defendant from testifying. The Fourth Circuit Court of Appeal granted the defendant a new trial, holding:

The common law, as made applicable by Rule 26, requires neither an appeal to God nor the raising of a hand as a prerequisite to a valid oath. All that the common law requires is a form or statement which impresses upon the mind and conscience of a witness the necessity for telling the truth.

Id . at 1407 (citation omitted).

Defendant's refusal to take the oath as administered was not based on the revered constitutional interests at issue in Gordon and Looper . Rather, Defendant's qualifications to the oath and threats of commercial liability against the reporter were purportedly intended to "protect and preserve any rights he may have in his intellectual property" and to prevent "misuse" of his testimony. (November 30 Brief at 3). Critically, unlike the witnesses in Gordon and Looper , Defendant and his counsel refused to explain the purpose and meaning of Defendant's qualification to the oath and whether Defendant intended to tell the truth as required by law. Taken as a whole, Defendant's statements and conduct at his deposition created such doubt as to whether Defendant intended to offer testimony subject to penalty of perjury that Defendant's oath was deficient. Defendant's declaration will not be considered for purposes of resolving Plaintiff's motion for preliminary injunction. *fn13 Defendant's motion for reconsideration is DENIED.

IT IS SO ORDERED.


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