Dirty Litigation Tactics: How to Deal with the "Rambo" Litigator

Presented by: Drew M. Capuder

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Dirty Litigation Tactics: How to Deal with the “Rambo” Litigator For Clear Law Institute September 16, 2019, 1pm ET

Drew M. Capuder CAPUDER FANTASIA PLLC CF Biography: Drew M. Capuder

• Licensed in West Virginia and Texas; practicing law 30 years. • Drew Capuder’s practice consists primarily of employment litigation and consulting, and also includes mediation, commercial litigation, business consulting, and medical industry employment litigation. Mr. Capuder is a partner at Capuder Fantasia PLLC and is the author of Drew Capuder’s Employment Law Blog. • Teaching: “Legal and Ethical Issues in Media,” at Fairmont State University (2005 to 2010). • Teaching: Legal Writing at University of Houston Law School (1992-1998). • Several appearances during the last 5 years on WAJR’s radio program “Ask the Experts”; appearance for WBOY TV on the WVU-Rodriguez lawsuit. • Several Lectures and Television Appearances for the Texas Society of CPAs from 1992-1998 • JD, University of Houston Law School, 1985 • BA, University of Southwest Louisiana (now named University of Louisiana), in Music Theory and Composition • Bio for this seminar: https://clearlawinstitute.com/shop/webinars/live- webinars/dirty-litigation-tactics-how-to-deal-with-the-rambo-litigator/

Drew M. Capuder, Capuder Fantasia PLLC © 2 Don’t Act Like the Jerk face, Too

1. There are two rules that out to guide the ethical attorney in dealing with abusive and stonewalling tactics:

a) Never engage in the conduct about which you are complaining.

b) Always behave in the manner which you expect from your opponent.

2. In other words, don’t play “tit for tat”. For other clichés, “don’t get down in the gutter” or “be the grownup in the room”.

3. Judges strongly suspect that both sides are at fault in typical discovery disputes, and try to make it clear that you are not at fault, you play by the rules, and you don’t engage in the garbage about which you are complaining.

Drew M. Capuder, Capuder Fantasia PLLC © 3 Key Points For Dealing With the Discovery Game-1

1. Videotape all depositions (or nearly all depositions) that you take. Having an audio and video recorder running, even when the bad opposing counsel is not in view of the video camera, is generally (not always) a deterrent. If the bad conduct nevertheless occurs, you have a better record for dealing with it (and there are lots of benefits otherwise for videotaping depositions). 2. Scan all document productions (and, for that matter, virtually everything else in your cases). Scan documents as Adobe PDFs. Learn the features in Adobe Acrobat to create an index so you can find any darn word in any darn document in the production (or your file). Have Adobe Acrobat Pro on at least one of your computers. Pay enough money for a decent scanner that can scan everything fast enough for resolution at least 300 by 300 and preferably in color. If you can afford it, buy software like CaseMap (www.casesoft.com) where the software will import all of the scanned PDFs from document production, and will create an index of every single word, and will provide more sophisticated querying capabilities than Acrobat. WestLaw’s competitor to CaseMap is Case Notebook: https://legalsolutions.thomsonreuters.com/law- products/solutions/case-notebook/ 3. Also consider indexing and searching software like X1 that makes it incredibly easy to find and view anything on your computer (www.x1.com). 4. Learn about Electronically Stored Information (“ESI”). Review carefully the federal rules that discuss ESI in detail (the rules are set out in detail below). Learn about your opponent’s data storage system and plan your discovery in light of ESI principles that are being written about especially in the federal system. Get ahold of one of the federal court “protocols” to learn about ESI (example from Maryland federal court: http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf).

Drew M. Capuder, Capuder Fantasia PLLC © 4 Key Points For Dealing With the Discovery Game-2

1. Hold opponents’ feet to the fire for producing documents in a manner in which you can identify the file or other location from which the documents came. Don’t tolerate a production consisting of 3,000 virtually undifferentiated pages. Consider using 30(b)(6) depositions of companies (combined with 30(b)(2) and 34) to scrutinize their production (these are sometimes called “death star” depositions by the zealous plaintiffs’ community).

2. Have a good set of forms for reviewing your opponent’s production, for notifying opposing counsel of the defects, and motions to compel. Software like CaseMap can help you keep track of defects in production to facilitate presenting a list of problems with your opponent’s production. Keep in mind the need in most federal courts to do all of this fast enough to get a motion to compel on file within 30 days after you receive the responses.

3. When crafting requests for production, don’t just focus on subject matter. Focus on the human beings who likely have emails and/or other documents. Those are awkwardly called “custodians” of documents in much of the federal material. Consider deposition notices with document subpoenas even for witnesses employed by the company which has already been served with a request for production. In other words, don’t assume defense counsel has spoken with and gathered documents from specific people—force the issue with a deposition subpoena aimed at specific people.

4. Demand a good privilege log that gives you sufficient information to intelligently assess the withheld documents. Most privilege logs are virtually worthless in the tiny amount of information they provide.

Drew M. Capuder, Capuder Fantasia PLLC © 5 Electronically Stored Information (“ESI”)

1. The Federal Judicial Center (https://www.fjc.gov) has valuable resources on E- Discovery, ESI, predictive coding, and the like. These are resources that are directed at federal judges, but are frequently invaluable for litigation attorneys and parties in litigation. For example, you can download the “Technology-Assisted Review for Discovery Requests; A Pocket Guide for Federal Judges”, published in 2017, which is educational for lawyers: https://www.fjc.gov/sites/default/files/2017/Technology- Assisted%20Review%20for%20Discovery%20Requests.pdf. Here is the search page for publications at the Federal Judicial Center: https://www.fjc.gov/publications 2. The Sedona Conference (https://thesedonaconference.org) is a non-profit which provide extensive education resources on a broad range of litigation issues, including E- Discovery. Here is there list of publications (all free), and there is an extensive section on E-Discovery: https://thesedonaconference.org/publications. In 2017, they issued their third edition of Best Practices, Recommendations & Principles for Addressing Electronic Document Production, and it is available for download. Their resources are extensive, and you really need to look at their publications page if E-discovery issues are important to you. 3. Since ESI, both as reflected in the federal rules, and as reflected in the reality of the modern world, is becoming extremely important, it is important to know the rules in the federal system that deal with ESI (it is only a matter of time before West Virginia catches up in its rules).

Drew M. Capuder, Capuder Fantasia PLLC © 6 Electronically Stored Information (“ESI”)-2

1. The 2006 Amendments to the FEDERAL RULES OF CIVIL PROCEDURE require companies to preserve information that can reasonably be anticipated to be relevant to a lawsuit (or an anticipated claim), and the company’s failure to preserve the evidence may result in sanctions from the court, either monetary or, in severe cases, the “death penalty” (such as striking a complaint or answer, or instructing the jury that it may draw an adverse evidentiary inference against the party failing to preserve the information). See, e.g., Coleman v. Morgan Stanley, 2005 WL 679071 (Fla. Cir. Ct.); Mosaid v. Samsung, 2004 U.S. Dist. LEXIS 23596 (D.N.J. July 7, 2004); United States v. Philip Morris, 327 F. Supp. 2d 21 (D.D.C. 2004). 2. The 2006 Amendments to the Federal Rules create substantial obligations concerning two categories of information: (1) information that is only available in electronic form, and (2) information that is available in both printed and electronic form. 3. The Rules require substantial planning at an early stage of any lawsuit (and sometimes even before a lawsuit is filed), and a Company-Defendant has an obligation to preserve relevant evidence and to halt what would otherwise be routine disposal/destruction of information (in other words, document retention policies cannot necessarily be safely implemented once litigation is started or anticipated). 4. The 2006 Amendments to the FEDERAL RULES OF CIVIL PROCEDURE require companies to preserve information that can reasonably be anticipated to be relevant to a lawsuit (or an anticipated claim), and the company’s failure to preserve the evidence may result in sanctions from the court, either monetary or, in severe cases, the “death penalty” (such as striking a complaint or answer, or instructing the jury that it may draw an adverse evidentiary inference against the party failing to preserve the information). See, e.g., Coleman v. Morgan Stanley, 2005 WL 679071 (Fla. Cir. Ct.); Mosaid v. Samsung, 2004 U.S. Dist. LEXIS 23596 (D.N.J. July 7, 2004); United States v. Philip Morris, 327 F. Supp. 2d 21 (D.D.C. 2004).

Drew M. Capuder, Capuder Fantasia PLLC © 7 Electronically Stored Information (“ESI”)-3

1. The 2006 Amendments to the Federal Rules create substantial obligations concerning two categories of information: (1) information that is only available in electronic form, and (2) information that is available in both printed and electronic form. 2. The Rules require substantial planning at an early stage of any lawsuit (and sometimes even before a lawsuit is filed), and a Company-Defendant has an obligation to preserve relevant evidence and to halt what would otherwise be routine disposal/destruction of information (in other words, document retention policies cannot necessarily be safely implemented once litigation is started or anticipated). 3. FED. R. CIV. P. 16 was amended to address E-Discovery. The Advisory Committee notes: “The amendment to Rule 16(b) is designed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur. Rule 26(f) is amended to direct the parties to discuss discovery of electronically stored information if such discovery is contemplated in the action. Form 35 is amended to call for a report to the court about the results of this discussion. In many instances, the court’s involvement early in the litigation will help avoid difficulties that might otherwise arise.” 4. Form 35 now contains the following passage for the Discovery Plan to be proposed to the Court: “Disclosure or discovery of electronically stored information should be handled as follows: (brief description of parties’ proposal).” 5. Amended Rule 16(b)(3)(B)(iii) states that the Court’s scheduling order may “provide for disclosure or discovery of electronically stored information”. 6. Rule 26(f)(3)(C) states that the parties proposed discovery plan must address “any issues about disclosure of disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”

Drew M. Capuder, Capuder Fantasia PLLC © 8 Electronically Stored Information (“ESI”)-4

There are a number of changes in the Rules concerning Scope of Discovery in Fed. R. Civ. P. 26 that deal with ESI: • Rule 26(a)(1)(A)(iii) directs the parties, in making initial disclosures, to provide their opponents with “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control” (emphasis added). • Rule 26(b)(2)(B) states that the Court may impose limits on electronic discovery: “Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. “ • Rule 26(b)(5)(B): addresses inadvertent disclosure of privileged information: “Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”

Drew M. Capuder, Capuder Fantasia PLLC © 9 Inadvertent Disclosure-1

1. You should be familiar with the federal rules that deal with inadvertent disclosure of documents. The federal rules put a heavy thumb on the scale in favor of the producing party being able to retrieve inadvertently produced documents. 2. FED. R. CIV. P 26(b)(5)(B) sets out a process for “clawing back” the inadvertently produced documents: “If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”

Drew M. Capuder, Capuder Fantasia PLLC © 10 Inadvertent Disclosure-2

1. FED R. EVID. 502(b) on “Inadvertent disclosure” avoids waiver of attorney client privilege can establish these requirements: When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: i. the disclosure is inadvertent; ii. the holder of the privilege or protection took reasonable steps to prevent disclosure; and iii. the holder promptly took reasonable steps to rectify the error, including (if applicable) following FEDERAL RULE OF CIVIL PROCEDURE 26(b)(5)(B).

Drew M. Capuder, Capuder Fantasia PLLC © 11 Boilerplate Objections

1. Boilerplate objections raise obvious problems. I frequently request, based on the authority outlined below, that objections be removed where they are “global” or not particularized to specific requests. 2. Another reasonable thing to do is to demand a disclosure on whether any documents are being withheld based on the objections. But that is not a fully adequate solution. 3. Objections must be particularized to specific requests. “The objecting party must show how each question is not relevant or how each question is overly broad, burdensome or oppressive by submitting affidavits or offering evidence revealing precisely the nature of the hardship.” F. CLECKLEY, R. DAVIS, AND L. PALMER, LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF CIVIL PROCEDURE at 908, § 33(b)(4)[2] & n.921 (2d Ed. 2006) (citing Compagnie Francaise D’Assurance v. Philips Petroleum Co., 105 F.R.D. 16 (S.D.N.Y. 1984); Chubb Integrated Sys., Ltd. v. Nat’l Bank of Washington, 103 F.R.D. 52 (D. D.C. 1984)). 4. “Blanket or general objections are universally considered improper and may be deemed a waiver of objections in their entirety.” Id. at 908, § 33(b)(4)[2] & n.922 (citing Folding Carton Antitrust Litig., 83 F.R.D. 260 (N.D. Ill. 1979); White v. Beloginis, 53 F.R.D. 480 (S.D.N.Y. 1971); Walker v. Lakewood Condominium Owners Ass’n, 186 F.R.D. 584 (C.D. Cal. 1999) (“Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all”)).

Drew M. Capuder, Capuder Fantasia PLLC © 12 Burdensomeness

1. The West Virginia Supreme Court has set out the framework for evaluating claims that discovery would be “unduly burdensome” under W. Va. R. Civ. P. 26(b)(1)(iii). The trial court should consider “several factors”: a) First, a court should weigh the requesting party’s need to obtain the information against the burden that producing the information places on the opposing party. This requires an analysis of i. [T]he issues in the case, ii. [T]he amount in controversy, and iii. [T]he resources of the parties. b) Second, the opposing party has the obligation to show why the discovery is burdensome unless, in light of the issues, the discovery request if oppressive on its face. c) Finally, the court must consider the relevancy and materiality of the information sought. State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75, 83 (1998).

2. So here are the factors for scrutinizing claims that requested information would be unduly burdensome to produce: a) The issues in this case; b) The amount in controversy; c) The resources of the parties; d) The relevance and materiality of the information sought; and e) Whether defendants can satisfy their obligation to establish that the production of the documents would be burdensome.

Drew M. Capuder, Capuder Fantasia PLLC © 13 In-House Counsel and Attorney-Client Privilege

1. A number of courts have recognized that in-house counsel frequently participate in company matters where no attorney-client privilege applies. They wear more than one “hat”, and sometimes those hats are purely in a business capacity. 2. Georgia Pacific v. GAF Roofing Manufacturing, Corp., 1996 W.L. 29392 (S.D.N.Y. 1996) (in-house counsel materials were privileged only when “exercising a lawyer’s traditional function” and not when “acting in a business capacity”); see also Georgia Pacific v. GAF Roofing Manufacturing Corp., 1995 W.L. 117871 (S.D.N.Y.1995). 3. TVT Records v. Island Def Jam Music Group, 214 F.R.D 143 (2003) (it is more “complicated” to apply attorney client privilege to communications from “in-house counsel as opposed to outside counsel because in-house attorneys are more likely to mix legal and business functions.” (citation omitted)). 4. Costco Wholesale Corp. v. Superior Court, 47 Cal 4th 725, 743 (2009) (the attorney-client privilege “is not applicable when the attorney acts merely as a negotiator for the client or is providing business advice.”)

Drew M. Capuder, Capuder Fantasia PLLC © 14 Counting Interrogatories-1

1. Here is language for a letter to send opposing counsel where they have refused to answer interrogatories because they claim you exceeded the permissible limit. The issue is typically how to count subparts in interrogatories. 2. START OF LETTER: I am writing to follow up on our discussion which dealt with counting interrogatory subparts. The issue is whether [Richard Nixon’s] interrogatories exceed the limit of 40 under W. Va. R. Civ. P. 33(a) (interrogatories may not exceed 40 in number “including all discrete subparts” (emphasis added)). My set of interrogatories to [corporate defendant name] contains 25 questions and my set of interrogatories to [individual defendant name] contains 24 questions. In asserting that these sets instead actually contain over 100 interrogatories, I understand you are counting most or all of the subparts as separate questions. Please let me set out why I believe my counting (25 and 24) is correct and consistent with applicable law. 3. The language in the West Virginia rule is identical to Fed R. Civ. P. 33(a) (“including all discrete subparts”). While I have not found any West Virginia cases interpreting the West Virginia rule, I have found a number of Federal cases interpreting the comparable Federal Rule 33(a) which, since 1993, has contained the identical language concerning counting “discrete subparts.” Before getting to the applicable case law, I will note that my dictionary defines “discrete” as “consisting of unconnected distinct parts.” 4. A good case to examine is Safeco of America v. Rawstron, 181 F.R.D. 441 (C.D. Cal. 1998) (applying Fed. R. Civ. P. 33(a) with identical language concerning “discrete subparts”), and I am enclosing a copy of that case for your convenience. The Court in Safeco set out the common sense test of whether the subparts relate to a “common theme”. The Court stated: “It would appear that an interrogatory containing subparts directed at eliciting details concerning the common theme should be considered a single question, although the breadth of an area inquired about may be disputable.” 181 F.R.D. at 444 (emphasis added) (quoting 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2168.1, at 261 (2d Ed. 1994)).

Drew M. Capuder, Capuder Fantasia PLLC © 15 Counting Interrogatories-2

1. The Court in Safeco canvassed the available case law and approvingly discussed a number of circumstances under which subparts would not count as separate interrogatories: 1. “if the subparts are ‘subsumed’ within or ‘necessarily related’ to the ‘primary question’”; 2. if the subparts are “logically or factually subsumed within and necessarily related to the primary question”; 3. if there is a “direct relationship between the various bits of information called for”; and 4. if the subparts are a “logical extension of the basic interrogatory.” 181 F.R.D. at 444-445 (discussing case law). The Court specifically addressed an interrogatory similar to my interrogatory 8 to [corporate defendant name]: “[A] question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” 181 F.R.D. at 443 (quoting Advisory Committee Note to Fed. R. Civ. P. 33). 2. I respectfully suggest that the application of these principles leads to the conclusion that my set of interrogatories to your client contains substantially less than 40 questions. The set to [corporate defendant name], for example, contains 25 numbered interrogatories, and, although we might argue whether a few subparts might count as separate questions, we would still be looking at substantially less than 40 questions. I am attaching a copy of the Safeco opinion. 3. Please keep in mind that, even if you are correct in asserting that I have exceeded the limit of 40 interrogatories, I have the option of asking for “[l]eave to serve additional interrogatories” and the leave “shall be granted to the extent consistent with the principles of Rule 26(b). See W. Va. R. Civ. P. 33(a). I could file a motion to compel, and, alternatively a motion for leave to serve more than 40 interrogatories. It seems to me that the better use of our time--and especially the Court’s time--is for you and me to reach an agreement on this issue, and I am more than willing to consider any argument you may have concerning proper counting methodology, and concerning whether certain interrogatories are otherwise objectionable. END OF LETTER

Drew M. Capuder, Capuder Fantasia PLLC © 16 Improper Behavior of Counsel at Depositions: Coaching the Witness and Instructing a Witness Not to Answer a Question

1. Most lawyers who try to coach the witness build the suggested answer into their objections. The rules are designed to prohibit that: An must be stated concisely in a non-argumentative and non-suggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence ordered by the court, or to present a motion under Rule 30(d)(3). FED. R. CIV. P. 30(c)(2) (emphasis added); accord W. VA. R. CIV. P. 30(d)(1). This Rule prohibits instructing the witness not to answer only under the specific circumstances identified. 2. Federal Rule 30(d) sets out available limitations and sanctions: • (1) Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non- suggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3). • (2) By order or local rule, the court may limit the time permitted for the conduct of a deposition, but shall allow additional time consistent with Rule 26(b)(1) if needed for a fair examination of the deponent or if the deponent to another party impedes or delays the examination. If the court finds such an impediment, delay, or other conduct that has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof. • (3) At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the circuit court of the county where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

Drew M. Capuder, Capuder Fantasia PLLC © 17 Improper Behavior of Counsel at Depositions: Coaching the Witness and Instructing a Witness Not to Answer a Question-2

1. Be mindful of the types of objections at depositions that may be waived: (3) As to Taking of Deposition. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

Drew M. Capuder, Capuder Fantasia PLLC © 18 Attorney-Witness Conferences During Depositions

1. A source of real abuse. 2. There is a wide variety of specific law amongst jurisdictions, but most judges view depositions as needing to take place substantially like real trial testimony, in that private conferences should be severely limited or prohibited. 3. Some federal courts flat-out prohibit private conference except to deal with a privilege issue 4. Consider terminating a deposition if the opposing counsel takes a substantial break with his or her witness. 5. For those of you in West Virginia, the key case is State ex rel. Means v. King, 205 W. Va. 708, 715-16, 520 S.E.2d 875, 882- 83 (1999), which rejects some of the more restrictive case law.

Drew M. Capuder, Capuder Fantasia PLLC © 19 Lawyers Who Will Not Communicate

1. I think we all know how to write emails and letters to lawyers who don’t communicate with us. But sometimes you get in front of the judge and proudly display your 14 emails and letters in connection with a motion, and the judge asks, “Did you call Mr. Jones?” Even worse, “Do you have a phone, do you know how to use it?”

2. I see more and more lawyers do virtually nothing to talk to each other, and there is a lot to be said for talking, both from the standpoint of diffusing difficult situations and for avoiding the sarcastic questions from the judge.

3. Create a paper trail early in the process in dealing with uncooperative counsel. A chatty, friendly email is a good start: “I called you today and left a voice mail about discussing [scheduling deposition of Richard Nixon]. Could you please give me a call back when you have a moment?” I think young lawyers typically err in being too confrontation at too early a stage.

4. If you cannot get a response on something that is important, and you are at an impasse, consider getting a hearing date quickly, and communicate the hearing date to the non-communicative lawyer. Sometime that helps the lawyer find his or her phone to call you.

5. Find out whether your judge will allow informal conference calls on various types of disputes. Sometimes that is an effective avenue to get something accomplished with opposing counsel.

6. If you have a lawyer that won’t return a call (or respond to an email), consider sending a letter more or less saying: “I have called and emailed you in an effort to schedule the deposition of [Richard Nixon]. You have not responded in any way. Accordingly, I intend to schedule and notice the deposition of [Richard Nixon] on June 1, 2015 at my office at 9am. I will assume that date, time, and location are all acceptable to you unless I hear promptly from you.” There are a lot of variations on that idea, but the ultimate point is to put the other person on notice that, because of the non- response, you are moving forward with scheduling the deposition (or hearing).

1. For a long time, I have videotaped all depositions I take, and I sometimes cross-notice depositions noticed by other parties so that I can videotape depositions they take. The video record deters abusive behavior and gives you a much better record when it occurs. There are inexpensive online services for synchronizing the video to the transcript for presentation at trial, and for use in software like Sanction or Trial Director. Or you can hire a local videographer to do that. Sanction and Trial Director even offer the ability, if you have the technical resources and inclination, to synchronize the transcripts with the video “in house”. 2. It is clear in West Virginia that lawyers are allowed to videotape their own depositions, without the need to hire professional videographers. Here are the relevant rules followed by the West Virginia Supreme Court decision making the issue clear. 3. W. Va. R. Civ. P. 28(a) states “depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of this State or of the place where the examination is held, or before a person appointed by the court in which the action is pending”. 4. W. Va. R. Civ. P. 30(b)(3): “The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means.” (emphasis added)

1. W. Va. R. Civ. P. 30(b)(3): “Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes (A) the officer’s name and business address; (B) the date, time, and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning to each unit of recorded tape or other recording medium. The appearance or demeanor of the deponents or attorneys shall not be distorted through camera or sound- recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.” 2. Applying these rules, the West Virginia Supreme Court held that the lawyer can videotape the deposition without an “independent” videographer. State ex rel. Bennett v. Keadle, 175 W. Va. 505, 507, 334 S.E.2d 643, 645 (1985) (Syl. Pt 3: “The operator of video equipment at a deposition need not be independent of the parties and their counsel unless the trial judge determines that no reasonable alternative exists to guarantee the accuracy and trustworthiness of the record produced.”).

1. Do it yourself! 2. You can buy video cameras with tripods for about $500 to $600 that are adequate, where they record onto memory chips, so you don’t have to fart around with tapes. If you jump up to the $1,000 price range for cameras, you can get the technology where the camera will create a Wi-Fi signal straight to a portable device (like iPhone, iPad, Android device), and you can from your seated position then watch the witness during the deposition, and control the camera (on and off). That arrangement minimizes the uncertainties that stem from not having someone constantly standing at the camera and constantly watching the camera viewfinder. 3. Software to sync video with the transcript is relatively inexpensive and easy to do. 4. Of course, other aids in dealing with abusive deposition tactics are the Rules of Professional Conduct: 3.1 on meritorious claims and contentions, 3.2 on expediting litigation, 3.3 on candor toward the tribunal, and 3.4 on fairness to the opposing party and counsel.

1. Videotaping will likely resolve ambiguities in a transcript. 2. Videotaping captures behavior by difficult and evasive witnesses. 3. Videotaping will capture long pauses by the witness. 4. I once had a witness “flip the bird” at me during a deposition. 5. Videotaping may help clarify whether a “bathroom break” is really a bathroom break. 6. Videotaping will capture a lot of abusive conduct by opposing counsel. 7. Videotaping will discourage abusive conduct by opposing counsel. 8. Videotaping may capture non-verbal cues to the witness. 9. Videotaping may help you on a motion for sanctions. 10. Videotaping help you get ready for trial. 11. Of course, videotaping will more effectively present testimony for you at trial.

1. This topic is dealt with in much of the rest of this article, but I have a few additional comments. 2. It is increasingly common for parties to produce documents with absolutely no identifying information as to whether the documents came from. 3. “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request”. Fed R. Civ. P. 34(b)(2)(E)(1). 4. In the common setting where there is no actual inspection, and the producing parties is copying the documents and sending them to the requesting party, then the documents have to be labeled to correspond to the production request. But that still might mean that you get a lot of documents and you have no idea where the documents came from—what custodian or witness, what file, etc.

1. To deal with that problem, include instructions in your request for production that the folder name or label from which the documents are copied should also be copied and placed on the top of the documents from that folder, and that there be some other identifying description of where the documents came from. 2. To avoid an objection that the producing party has no obligations in a response to a request for production to write anything identifying the source of the documents, include an interrogatory that asks them to provide certain information about groups of documents produced in response to the request for production: possibilities for data bits: the office or other business area where the documents were located, the person who had control over the documents, the person who selected the documents for production, the person who created the documents (this helps obviously on handwritten and other documents where there is no indication of the author), the title or substantive description of the folder from which the documents were copied, etc. Come up with your wish list of information to help you digest the documents that are being produced to you. You may get objections to this interrogatory, but being prepared to file a motion over it may get you much of the information you are seeking.

1. Use 30(b)(6) depositions aggressively to find out about documents produced. Hold opponents’ feet to the fire for producing documents in a manner in which you can identify the file or other location from which the documents came. Consider using 30(b)(6) depositions of companies (combined with 30(b)(2) and 34) to scrutinize their production (these are sometimes called “death star” depositions by the jealous plaintiffs’ community). 2. Here is a good discussion on “death star depositions”: To ensure that a motion to compel is successful, a requesting party must be sure to build an adequate record through carefully crafted interrogatories, requests for production, and depositions. Attorneys managing the discovery phase of a lawsuit should act under the assumption that there will be a discovery challenge to every aspect of the process. The “Death Star” deposition is one particularly effective means of building such a record. A Death Star deposition combines Rules 30(b)(2), 30(b)(6), and 34 and forces a corporate designee to bring all requested documents to an oral deposition. At a minimum, requests for production should specifically inquire about an institution’s managerial structure, including the identification of key players; a detailed map of an organization’s information systems--IT infrastructure, system capabilities, and possible locations or sources of stored information--including individual work computers, home computers, e-mail servers, DMS servers, financial systems, backup servers, corporate firewall, networks, external storage drives, PDA devices, and voicemail; an institution’s document retention policy; and steps an organization has taken to preserve relevant ESI after it reasonably anticipated litigation. By combining an oral deposition with a document request, the deposing attorney is able to determine if all relevant documents were produced and inquire about the precise nature of the requested documents under oath. Franz Vancura, Using Computer Forensics to Enhance the Discovery of Electronically Stored Information, 7 U. St. Thomas L.J. 727, 744-745 (2010).

1. While I have on rare occasions had judges allow their jury room to be used for depositions in “abuse situations” where the judge will be available to monitor the situation, that almost never happens and is not likely to be a prospect for you. Judge’s involvement means seeking the judge’s intervention after the fact. But it might be that the judge permits informal conference calls that do not require the formality of a motion. 2. For special masters, the Academy of Court Appointed Masters has a very good and very lengthy article on using special masters: “Appointing Special Masters and other Judicial Adjuncts”. Here is their web site: http://www.courtappointedmasters.org/ 3. Here is the link to their article, which is designed for judges and lawyers: http://www.courtappointedmasters.org/sites/default/files/2013_benchb ook.pdf

Drew M. Capuder, Capuder Fantasia PLLC © 28 How to Ensure That Your Opponent Designates the Proper 30(B)(6) Corporate Designee Witnesses-1 1. The federal and West Virginia state rules say substantively the same thing on depositions of corporate entities:

Federal Rule of Civil Procedure 30(b)(6): W. Va. Rule of Civil Procedure 30(b)(7): “In its notice or subpoena, a party may name “A party may in a notice and in a subpoena as the deponent a public or private name as the deponent a public or private corporation, a partnership, an association, a corporation or a partnership or association or governmental agency, or other entity and governmental agency and describe with must describe with reasonable particularity reasonable particularity the matters on which the matters for examination. The named examination is requested. In that event, the organization must then [1] designate one or organization so named shall [1] designate one more officers, directors, or managing agents, or more officers, directors, or managing or designate other persons who consent to agents, or other persons who consent to testify on its behalf; and [2] it may set out the testify on its behalf, and [2] may set forth, for matters on which each person designated will each person designated, the matters on which testify. A subpoena must advise a nonparty the person will testify. A subpoena shall advise organization of its duty to make this a non-party organization of its duty to make designation. The persons designated must [3] such a designation. The persons so designated testify about information known or reasonably shall [3] testify as to matters known or available to the organization. This paragraph reasonably available to the organization. This (6) does not preclude a deposition by any subdivision does not preclude taking a other procedure allowed by these rules.” deposition by any other procedure authorized in these rules.”

Drew M. Capuder, Capuder Fantasia PLLC © 29 How to Ensure That Your Opponent Designates the Proper 30(B)(6) Corporate Designee Witnesses-2 1. An important thing to understand about 30(b)(6) depositions is that they obtain the “information known” to the “organization”. In practice and as applied by many courts, that provides something approaching an “admission” on a peer level with a request for admission response. There is ample authority for the proposition that an organization cannot at trial then contradict the response at a 30(b)(6) deposition. 2. Another important thing to understand is that the 30(b)(6) deposition puts the organization to the duty of conducting reasonable investigation so that the witness is knowledgeable about the topics identified in a 30(b)(6) notice. 3. It is important for the company to select an appropriate deponent when served with a 30(b)(6) notice, and there may be possible sanctions where the company presents someone who doesn’t know anything about the topics.

1. “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” FED. R. CIV. P. 37(a)(1). 2. Under the Local Rules for the Northern District of West Virginia, a motion to compel must state: a) Verbatim each discovery request or disclosure requirement and any response thereto to which an exception is taken. If the discovery request or 69 disclosure requirement is ignored, the movant need only file a motion to compel without setting forth verbatim the discovery request or disclosure requirement; b) The specific rule, statute or case authority supporting the movant’s position as to each such discovery request or disclosure requirement; and c) The following specifics in the certification of the good faith conference required under Fed. R. Civ. P. 37: i. the names of the parties who conferred or attempted to confer, ii. the manner by which they conferred, and iii. the date and time of the conference. N.D. W. VA. L.R. CIV. P. 37.02(a).

1. But an important limitation on your right to file a motion to compel is that it needs to be done within 30 days under the Northern District Local Rules: A motion to compel, or other motion in aid of discovery, is deemed waived if it is not filed within thirty (30) days after the discovery response or disclosure requirement sought was due, which date is determined in accordance with a rule or by mutual agreement among the parties, unless such failure to file the motion was caused by excusable neglect or by some action of the non-moving party. In any event, the moving party must show good cause to delay the trial or modify the scheduling order. N.D. W. VA. L.R. CIV. P. 37.02(b).