Apple Sanctioned For “Impeding and Frustrating” Deposition of Engineer

The court granted in part plaintiff's motion for sanctions after defendant halted the deposition of its engineering manager and allowed defendant to choose either (1) monetary sanctions with a new deposition of the witness and a waiver of privilege as to any post-initial deposition conversations about the patents-at-issue, or (2) precluding the witness from trial with an adverse inference instruction to the jury. "If the Court simply imposes fees and expenses and orders completion of [the] deposition, it would be a nominal sanction at best, as [defendant] would have accomplished what it conceivably wanted – disruption of the deposition and an opportunity to visit with the witness regarding his testimony. . . . [T]o give an adverse inference instruction, as requested by [plaintiff], is to conclude that [defendant] did in fact terminate the deposition to give it an opportunity to coach the witness and that the testimony would have been unfavorable to [defendant]. While there is a strong inference that this is indeed the case, the Court is hesitant to make such a definitive finding. . . . This choice of sanctions allows [defendant] to complete the deposition and avoid the adverse inference instruction, but prohibits it from potentially profiting from having stopped the deposition. At the same time, if [defendant] chooses not to complete the deposition with any otherwise privileged post-termination communications waived, then such an adverse inference instruction is justified and appropriate."

VirnetX Inc. v. Cisco Systems, Inc., et. al., 6-10-cv-00417 (TXED August 8, 2012, Order) (Davis, J.).