United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR SANCTIONS
[DOC. NO. 93.]
WILLIAM V. GALLO UNITED STATES MAGISTRATE JUDGE
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
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,
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.)
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); April 1, 2019 (Doc. Nos. 78-80);
April 10, 2019 (Doc. Nos. 81-82); May 3, 2019 (Doc. No. 88);
and May 10, 2019 (Doc. No. 89). In all, this Court held seven
discovery conferences in a short four-month period.
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.
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.
deposition of Margaret Gardner took place on May 3, 2019 in
Philadelphia, and Chovanes quickly set the tone for the
day. As Ryan opened the deposition by
providing standard instructions ordinarily given in
depositions-such as for Gardner and Ryan to speak in turn to
avoid speaking over each other-Chovanes stated:
“Objection to that preamble. No need to lecture my
client.” (Doc. No. 93-6 at 11.) When Ryan shortly
thereafter benignly advised Gardner that he would clarify any
questions that she did not understand if she so requested,
Chovanes stated: “Objection to the lecture.”
(Id. at 12.) And so began a protracted day of Ryan
attempting to take Gardner's deposition while Chovanes
continuously interrupted, lodged frivolous objections,
improperly instructed Gardner to not answer questions, and
extensively argued with Ryan. Chovanes's continuous,
relentless interrupting Ryan's questioning also included
an outburst by Chovanes, where she and Gardner left the room
after Chovanes falsely and bizarrely accused Ryan of
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.
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.
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. (Doc. No. 93-2.) Defendant filed an
opposition to the sanctions motion, but despite the
opportunity, provided no video clips in rebuttal.
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.
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.
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.
Sanctions Under Federal Rule of Civil Procedure
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
Sanctions Under 28 U.S.C. § 1927
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).
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).
“Inherent Powers” Sanctions
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.
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
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. For example, in In re Itel Sec. Litig.
v. Itel, 791 F.2d 672 (9th Cir. 1986), counsel filed
objections to exact fee concessions in an action pending
before another court. The objections were not frivolous, nor
were they submitted with any knowledge that they were
meritless. But counsel's goal was to gain an advantage in
the other case, which we concluded was “sufficient to
support a finding of bad faith.” Id. at 675.
“For purposes of imposing sanctions under the inherent
power of the court, a finding of bad faith ‘does not
require that the legal and factual basis for the action prove
totally frivolous; where a litigant is substantially
motivated by vindictiveness, obduracy, or mala fides, the
assertion of a colorable claim will not bar the assessment of
attorney's fees.'” Id. (quoting
Lipsig v. Nat'l Student Mktg. Corp., 663 F.2d
178, 182 (D.C. Cir. 1980) (per curiam)).
Itel teaches that sanctions are justified when a
party acts for an improper purpose -- even if the act
consists of making a truthful statement or a non-frivolous
argument or objection. In Itel, the improper purpose
was the attempt to gain tactical advantage in another case.
791 F.2d at 675 (discussing improper motivation). This
approach is in harmony with Roadway, where the
Supreme Court made clear that courts possess inherent power
to impose sanctions for “willful abuse of judicial
processes.” 447 U.S. at 766.
In reviewing sanctions under the court's inherent power,
our cases have consistently focused on bad faith. For
example, in United States v. Stoneberger, 805 F.2d
1391 (9th Cir. 1986), the district court imposed sanctions on
a chronically late attorney. Reversing the imposition of
sanctions, we held that mere tardiness does not demonstrate
the improper purpose or intent required for inherent power
sanctions. Id. at 1393. Rather, “[a] specific
finding of bad faith . . . must ‘precede any sanction
under the court's inherent powers.'”
Id. (quoting Roadway, 447 U.S. at 767).
We again reversed sanctions due to a lack of intent in
Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir.
1989). In that case, the plaintiff's counsel negligently
failed to comply with local court rules that required
admission to the district court bar. We vacated the
sanctions, holding that the district court may not sanction
mere “inadvertent” conduct. Id. at 1485;
see also Id. at 1483 (“Nothing in the record
indicates that their failure to request admission to the
district bar was anything more than an oversight or ordinary
negligence on their part.”); id. at 1484
(“Willful or reckless disregard of court rules
justifies punitive action.”). Similarly, in Yagman
v. Republic Ins., 987 F.2d 622, 628 (9th Cir. 1993), we
vacated the imposition of sanctions where there was no
evidence that the attorney had “acted in bad faith or
intended to mislead the court.”
Fink v. Gomez, 239 F.3d 989, 992-94 (9th Cir. 2001).
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.
Instances of Chovanes Instructing Gardner to Not Answer Based
on Impermissible Grounds
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).
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
• Are you an officer of Avidas Pharmaceuticals? (Doc.
No. 93-6 at 14:14-17.)
• Are you a member of Avidas Pharmaceuticals?
(Id. at 14:19-22.)
• Are you a managing member of Avidas? (Id. at
• When was Avidas Pharmaceuticals formed? (Id.
• Are there any current employees of Avidas
Pharmaceuticals? (Id. at 29:2-5.)
• Where has Avidas been located since 2008?
(Id. at 29:7-9.)
• Is Dan McCall a member of Avidas Pharmaceuticals, LLC?
(Id. at 29:16-30:3.)
• Is Michael Warne . . . a member of Avidas
Pharmaceuticals, LLC? (Id. at 30:5-8.)
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
What -- there's nothing on . . . your 30(b)(6) notice,
that says “foundational information.”
So you're beyond the scope of the 30(b)(6) notice too. So
that makes no sense, foundational information. You're
just making that up, sir.
Let's proceed to what's on the 30(b)(6) notice, which
is why we're here.
(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
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
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.
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
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
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
[a]n objection at the time of the examination-whether to
evidence, to a party's conduct, to the officer's
qualifications, to the manner of taking the deposition, or to
any other aspect of the deposition-must be noted on the
record, but the examination still proceeds; the
testimony is taken subject to any objection. . . . 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
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
Although the above categories constituted the bulk of the
inappropriate objections and instructions to not answer,
there are other violative examples sprinkled in the
MS. CHOVANES: Well, don't answer that question.
“Required to follow” is not a legal question - I
mean, it's asking for your opinion, and that's not
what we're here for. (Doc. No. 93-6 at 117:25-118:2.)
Q. Can you generally describe what those agreements were.
MS. CHOVANES: Objection. No don't answer that question.
That's a ridiculous question. What do you mean by
“generally describe” That's dangerous.
I'm not going to let her answer that. Rephrase. There are
titles right here so why don't you just ask her that. Why
are you wasting our time? (Id. at 33:10-19.)
Q. And generally speaking -- and I know you're not a
lawyer. Generally speaking, what is your understanding as to
what the know-how agreement provides?
MS. CHOVANES: Objection. I'm not going to let you answer
that question. If you want to point her to specific areas and
ask her questions about facts, but that comes too close to
opinion testimony so we're not going to answer.
(Id. at 37:17-28:1.)
Q. Exhibit 1 reflects a number of units of inventory of
Vitaphenol products. Did Avidas confirm that it received each
of those units of inventory that is stated on Exhibit 52 of
MS. CHOVANES: Objection to the question. It's not
understandable. It also misstates the document itself. So
I'm not going to let you answer the question because
it's not an accurate reflection of what's in the
document. You can't make up stuff about the documents and
ask the witness to testify. Go from the document itself.
(Id. at 44:13-45:1.)
Q. Where were those records located?
the Doylestown office.
Q. Did the Vitaphenol records that were maintained in the
Doylestown office, were they transferred to your home office
at some point?
MS. CHOVANES: Objection; inference. I'm not going to let
her answer that question because it's leading and it
implies facts that aren't in evidence. (Id. at
Q. Do you know whether all of the records that Avidas
maintained relating to Vitaphenol products were retained?
MS. CHOVANES: Objection. Don't answer that question.
MR. RYAN: On what grounds?
MS. CHOVANES: It makes no sense; and I'm not going to get
into these areas without a specific question making sense.
(Id. at 84:19-85:2.)
addition to at times being nonsensical, none of these
refusals to allow Gardner to answer complied with Rule
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.
Instances Where Chovanes Disruptively Instructed Ryan On How
to Pose Questions to Gardner
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
Q. Are you an employee of Avidas Pharmaceuticals?
A. I am the founder.
MS. CHOVANES: Objection; irrelevant. Why don't you
identify why the witness is here first. Okay? She's here
pursuant to the 30(b)(6) notice that you issued. I think
it's usually presentable to the witness at this point
Whether or not she's an employee or not is irrelevant;
right? (Doc. No. 93-6 at 11:20-12:5.)
Q. And you mentioned that Avidas Pharmaceuticals was -- began
operations in around 2008. At the time that Avidas
Pharmaceuticals began operations, was Vitaphenol the first
product that it sold? . . . .
MS. CHOVANES: Objection. That question is in two parts, and I
object to your saying that the witness mentioned anything. No
need for a preamble. Let's just ask a nice clean
question. Please restate the question. (Id. at
Q. So Exhibit 51 is one of the agreements that Avidas
Pharmaceuticals entered into with La Jolla Spa MD; is that
MS. CHOVANES: Objection. Don't ask questions so they
lead, please. You may answer. (Id. at
Q. Did Avidas have Harmony manufacture new Vitaphenol
MS. CHOVANES: You know what? While there's no question,
I'm going to ask you to speed this up and say: Are there
any products on that list that they did not manufacture? Can
we do it quicker?
MR. RYAN: No.
MS. CHOVANES: Why not, Counsel?
MR. RYAN: But I think it's important that we go through
MS. CHOVANES: 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.
(Id. at 58:9-24.)
Q. Where were those records located?
A. In the Doylestown office.
Q. Did the Vitaphenol records that were maintained in the
Doylestown office, were they transferred to your home office
at some point?
MS. CHOVANES: . . . . Just ask her simple questions. It's
not that complicated.
MR. RYAN: It's a simple question.
MS. CHOVANES: No, it's not.
(Id. at 79:4-16.)
Q. Do you believe that your file folder that contains emails
relating to Vitaphenol contains all of the emails that were
sent or received relating to Vitaphenol from 2008 to the
MS. CHOVANES: Objection to the question; it's irrelevant,
the use of the word “believe” Do you want to
rephrase the question, please? I mean, you're obviously
hunting to pin her down for destroying documents, and I think
it's unfair. So ask a good question. (Id. at
Q. In connection with this agreement, Avidas sold its
inventory of Vitaphenol products to SciDerma; is that
MS. CHOVANES: . . . . Can you do that? Can you ask just
open-ended questions - was inventory transferred? -- and then
maybe we can get into it that way.
MR. RYAN: Well, I don't think I'm required to only
ask open-ended questions.
MS. CHOVANES: Well, I understand. You can ask them how you --
but my objection is with regard to the word “sold,
” which as you recall we already went through on an
extensive go-around already with regard to paper discovery. I
mean, I would just ask the witness -- you're pulling
teeth. Why don't you just ask her what happened as a
result of the agreement and see what happens. Maybe
you'll get the statement you want. (Id. at
Q. Does SciDerma still owe Avidas some money in connection
with the Harmony product inventory that was transferred to
MS. CHOVANES: To the extent SciDerma is a company, that's
an interesting question. I don't know if they're
still in business. So why don't you ask within the scope
of if the client knows they're -- if the witness even
knows they're a company.
MR. RYAN: Well, I just want to know whether Avidas believes
that SciDerma still owes money in connection with the Harmony
MS. CHOVANES: Avidas' belief is not relevant to this
case, and she's not going to testify with regard to a
(Id. at 109:21-110:11.)
Q. With respect to the inventory values that we see on
Exhibit Roman numeral IV, do you know who came up with those
values for the inventory?
MS. CHOVANES: Objection to the question. I don't know
what “come up with” means, ” and I'd
ask you to clarify and be precise with regard to your
question. (Id. at 113:7-13.)
Q. The packaging that we see on the left side of Exhibit 58
that's similar to the packaging we see in Exhibit 57. Do
you see that?
MS. CHOVANES: Objection to your statement about similarity.
Ask a question. Don't editorialize. (Id. at
Q. And that would be true for the entire period of time that
SciDerma sold the Vitaphenol products: Information would come
in various forms.
MS. CHOVANES: ..... Objection. Can you ask a question that
makes sense, because that one doesn't. It's got too
(Id. at 196:15-23.)
Q. This report on Bates-stamped Page 1042 in the upper
left-hand corner says “November and December
sales.” So is it your belief that these are November
and December sales from the year 2010?
MS. CHOVANES: You're not entitled to her belief. Ask a
question that seeks relevant information.
MR. RYAN: I disagree.
MS. CHOVANES: You're not entitled to her belief.
That's an opinion. You're entitled to facts. Ask a
simple question. I don't know why you mess them up by
putting “belief in. That calls for opinion testimony on
MR. RYAN: I'm entitled to her opinion based on her
foundation so far.
MS. CHOVANES: No, you're not entitled to her opinion.
We'll go to the judge on that. You're not entitled to
a person's opinion. They're a fact witness. So ask
the question if you want. Again, I'll make the same
objection. (Id. at 202:21-203:18.)
Q. On May 8th of 2014, you emailed Joe Kuchta, “Joe,
this is the draft of the email I will send to Dianne
York.” Why did you send that email to Joe Kuchta?
MS. CHOVANES: Objection; there's been no foundation laid
for the fact it's an email. Do you want to do that first?
BY MR. RYAN: Q. Did you send an email to Joe Kuchta on May
8th of 2014 a 7:35 a.m.?
MS. CHOVANES: No, that's not the way to do it. Come on,