Aviva Sports, Inc. v. Fingerhut Direct Marketing, Inc., et. al., 0-09-cv-01091 (MND March 20, 2013, Order) (Mayeron, M.J.).
Friday, March 22, 2013
Unprepared 30(b)(6) Witness Warrants Sanctions Against Defendant and Counsel
The court sanctioned both defendant and defense counsel for presenting an unprepared 30(b)(6) witness. "[Defendant's 30(b)(6) witness] came to the deposition with typewritten answers to the topics — a script apparently prepared by [defendant's] Chinese counsel. [The witness] repeatedly expressed his misunderstanding that he would not have to answer any questions (or provide any answers) 'off script.'. . . [Defendant's] decision to send [him] to the deposition armed with little knowledge beyond the notes provided by [its Chinese counsel] is indefensible. To make matters worse, [defendant] seemed oblivious to the impropriety of scripting answers for a corporate deponent. . . . Any lawyer acting with a reasonable amount of skill and diligence would have recognized that [the witness] was not the right deponent and the fault for failing to adequately prepare [him] lies with [defendant] and its counsel. Given [the witness's] complete lack of familiarity with [defendant] this Court can only surmise that the decision to put [him] forward was strategic. . . . [C]ounsel’s conduct in the deposition was objectively reckless and so egregious that it amounted to bad faith."