Free Order - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Donald Chapman, Plaintiff, vs. John E. Potter, Postmaster General, United States Postal Service; National Postal M ail Handlers Union, Defendants.

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No. CV 03-2537 PHX-DGC

ORDER

The Court has held a number of discovery conference calls in this case. Calls have been placed when counsel for plaintiff, William R. Hobson, and couns el for Defendant John E. Potter, Harriet M . Bernick, have dis agreed. The parties placed a conference call to the Court on October 12, 2005, concerning objections, instructions, and other comments made by M s. Bernick during a deposition. As a result of this call, the Court entered an

Order setting forth fundamental deposition rules that should already be known and practiced, including that lawyers should state the legal basis for an objection wit hout elaboration, should refrain from coaching witnesses through speaking object ions ,

comments, or body language, should not interrupt a dep os it ion to confer with a witness when a question is pending, and should "refrain from making inap p ropriate remarks of any kind." See Doc. #108. F ive days later, on October 17, 2005, the parties placed another discovery conference call to the Court. M r. Hobson and M s. Bernick had again reached

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disagreement.

T he Court entered rulings on their disagreement and instructed that "the

parties shall provide the Court w it h relevant pages of today's transcript so the Court can determine whether sanctions are warranted for [M s. Bernick's comments]." See Doc. #111. On October 19, 2005, M s. Bernick provided the Court with relevant pages from the deposition transcript. See Doc. #112. The parties again reached disagreement on December 2, 2005, and placed anot her discovery conference call to the Court. The Court entered an Order regarding the

disagreement (Doc. #143) and, during the call, directed the parties to provide relevant deposition pages to again determine whether counsel had violated the Court's order regarding deposition protocol. #144. The Court has reviewed the deposition transcript submitted by t he p arties, and reaches the following conclusions: 1. Neither side is cooperating as the Court exp ect s. Counsel for Plaintiff and M r. Hobson has now provided those pages. See D oc.

Defendant Potter are too quick to disagree, too unwilling to lis t en, t oo unwilling to engage in reasonable dialog, and too quick to contact the Court for a resolution of their differences . Calm and courteous discussion, with a genuine interest in resolving

disagreements rather than making accusations, would have resolved mos t if not all of the discovery disputes in this case. 2. On October 12, 2005, t he Court specifically stated that "counsel shall refrain

from making inappropriate remarks of any kind." D oc. #108. The Court entered this Order after being informed that M s. Bernick had made inappropriate remarks to M r. Hobson during a deposition. M s. Bernick violated this Order in the deposition of October 17, 2005 when she made the following statement to M r. Hobson: "Do you unders tand that, or are you too stupid to understand it?" Doc. #112, Ex. at 54. M s. Bernick further violated the Court 's O rder in the deposition of October 19, 2005, when she responded to M r. Hobson's question as follows: "Objection. You don't need to answer that." When M r. Hobson

asked the basis for her objection, M s. Bernick replied: "It's a stupid question." Doc. #144,
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Ex. 2 at 2-3.

T hes e statements by M s. Bernick are inappropriate, unprofessional, and a

violation of the Court's Order of O ct ober 12, 2005. As a sanction for violating the Court's Order, and pursuant to Rule 37 of the Federal Rules of Civil Procedure, M s . Bernick p ers onally shall pay Plaintiff $150.00 in attorneys' fees, which represents the Court's estimate of the value of the t ime wasted by Plaintiff's counsel in seeking the Court's intervention. M ore severe sanctions will be imposed if M s . Bernick persists in this T his sanction shall be paid to Plaintiff on or before

unprofessional conduct . December 31, 2005. 3.

T he Court expects all counsel to behave professionally in all aspects of t his

case yet to be completed. DATED this 8th day of December, 2005.

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