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La Jolla SPA MD, Inc. v. Avidas Pharmaceuticals, LLC

United States District Court, S.D. California

August 30, 2019

LA JOLLA SPA MD, INC., Plaintiff,
v.
AVIDAS PHARMACEUTICALS, LLC, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR SANCTIONS [DOC. NO. 93.]

          HON. WILLIAM V. GALLO UNITED STATES 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.

         I. Background

         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);[1] 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.

         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.[2] 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.)[3] 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 threatening Gardner.[4]

         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.[5] (Doc. No. 93-2.) Defendant filed an opposition to the sanctions motion, but despite the opportunity, provided no video clips in rebuttal.

         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.

         II. Legal Standard

         A. Sanctions Under Federal Rule of Civil Procedure 30(d)(2)

         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).

         B. Sanctions Under 28 U.S.C. § 1927

         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).

         C. “Inherent Powers” Sanctions

          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:

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).

         III. Discussion

         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.

         A. Chovanes's Conduct

         1. Instances of Chovanes Instructing Gardner to Not Answer Based on Impermissible Grounds

         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:

• 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 15:7-8.)
• When was Avidas Pharmaceuticals formed? (Id. at 18:9-11.)
• 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.)

         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:

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 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

[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 30(d)(3).

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:

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 Exhibit 1?
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?

         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: 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 79:4-12.)
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.)

         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.

         2. Instances Where Chovanes Disruptively Instructed Ryan On How to Pose Questions to Gardner

         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:

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 31:13-32:2.)
Q. So Exhibit 51 is one of the agreements that Avidas Pharmaceuticals entered into with La Jolla Spa MD; is that correct?
MS. CHOVANES: Objection. Don't ask questions so they lead, please. You may answer. (Id. at 37:7-12.)[6]
Q. Did Avidas have Harmony manufacture new Vitaphenol anti-aging toner?
A. Yes.
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 each one.
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.[7]

(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 present?
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 88:24-89:9.)
Q. In connection with this agreement, Avidas sold its inventory of Vitaphenol products to SciDerma; is that correct?
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 103:7-104:6)
Q. Does SciDerma still owe Avidas some money in connection with the Harmony product inventory that was transferred to it?
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 product.
MS. CHOVANES: Avidas' belief is not relevant to this case, and she's not going to testify with regard to a legal matter.

(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 160:3-9.)
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 many parts.

(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 its face.
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.)[8]
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.?
A. Yes.
MS. CHOVANES: No, that's not the way to do it. Come on, ...

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