TCPA Defendant Chastised for Disputes on Expert Deposition

Monday, September 28, 2020

Completely satisfied Monday TCPAWorld. Right here’s one to get the week began off proper.

It isn’t typically a Court docket characterizes the dispute of events to litigation as “foolish.” It’s maybe even rarer for a Court docket to announce it’s “perplexed and confounded” by a Defendant’s movement in reference to discovery.

In Austin v. Public Fame Mgmt. Servs., Case No. 20-cv-80161, 2020 U.S. Dist. LEXIS 172968 (S.D. Fl. Sept. 22, 2020) we’re handled to each.

Apparently the Defendant in a putative TCPA case actually needed to take an knowledgeable’s deposition in August, 2020. After unilaterally setting a date that the knowledgeable was apparently not obtainable, it refused to maneuver the deposition date prompting a movement for a protecting order by the Plaintiff—filed on an emergency foundation two days earlier than the deposition was to start. The Defendant opposed the movement the day after the submitting demanding that the deposition go ahead. Dropping no matter else it was doing that afternoon, the Court docket chimed in the identical day, permitting the deposition to be moved, however solely by a number of days and it in the end ended up continuing the Saturday following the unique date it was set forth.

Whereas which will appear a lot ado about nothing—the Court docket characterised the difficulty as “foolish”—it served as a backdrop for a second battle that in the end resulted within the ruling in Austin.

Apparently within the scramble to organize and produce Mr. Woolfson—hey, didn’t he used to testify for defendants?—Plaintiff’s counsel “failed” to provide the data underlying the knowledgeable’s experiences till a day or two earlier than the deposition went ahead. After taking the knowledgeable’s deposition on the expedited foundation (defined above) the Defendant then complained to the court docket that they’d been prejudiced by plaintiff’s “premature” manufacturing of data.

The Court docket was not amused.

After declaring that the Defendant by no means truly correctly demanded the data in a way that might set off court docket intervention—equivalent to by way of a subpoena—and {that a} request by way of e-mail to Plaintiff’s counsel was not truly an enforceable formal discovery demand, the Court docket decided that Defendant received precisely what it requested for—an early deposition:

For no matter motive, Defendant’s counsel aggressively demanded a right away deposition of Plaintiffs’ knowledgeable, Mr. Woolfson, with out taking the time to make sure he would have all the paperwork he allegedly wanted for that deposition. Defendant received that fast deposition on August 29, 2020, and now inexplicably complains about it.

Decided to precise its angst over the scenario, the Court docket goes on to tear Defendant for failing to answer to the Plaintiff’s opposition to the additional deposition—an oversight the court docket says “speaks volumes”– earlier than ending with the devastating applesauce line all federal litigators dread:

In sum, Defendant’s argument and logic justifying an Order from this Court docket requiring a second deposition of the knowledgeable is, to cite the late Justice Scalia, “pure applesauce.” King v. Burwell, 135 S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting). Merely put, the Court docket won’t bail Defendant out of the predicament that its personal counsel precipitated. The request for 2 hours of extra deposition time of Mr. Woolfson is meritless. That is now the second foolish and wasteful discovery dispute this Court docket has needed to deal with, and rule upon, up to now three weeks on this TCPA case. The subsequent one will end in sanctions to the offending occasion and counsel.

So, um, yeah.

Take aways listed here are fairly clear: don’t agitate a federal decide with “foolish” discovery motions introduced on an emergency foundation replete with “applesauce” arguments.

However in seriousness, TCPA litigators—like all federal court docket litigators—must maintain the foundations of civility in thoughts. Unilaterally setting deposition dates, refusing to cooperate with opposing counsel, requiring emergency motions, not submitting reply briefs, and so on., are the form of self-inflicted errors a profitable litigant is aware of to keep away from. And whereas litigation can get contentious at occasions, maintain your cool and don’t assume that the Court docket goes to see issues your manner in a spat. As a rule the Court docket will discover a strategy to punish either side if they’ll’t discover a strategy to work collectively.

Let’s have a very good week TCPAWorld.