James v. Intelligent Software Solutions, Inc.

MOTION to Compel Plaintiff to Complete Deposition and For Other Relief

M.D. Fla.March 8, 2019

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SHERI JAMES, Plaintiff, v. INTELLIGENT SOFTWARE SOLUTIONS, INC., Defendant. _________________________________________/ CASE NO.: 8:16-cv-02773-SDM-TGW DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO COMPLETE DEPOSITION AND FOR OTHER RELIEF Defendant Intelligent Software Solutions, Inc. (“Defendant”), by and through its undersigned counsel, moves to compel Plaintiff Sheri James (“Plaintiff”) to return to complete her deposition. Defendant further respectfully asks that the Court admonish Plaintiff to cooperate with Defendant’s counsel by reducing the frequency of excessive pauses before responding to a question and excessive requests to repeat questions and to refrain from giving non-responsive answers. As grounds, Defendant states: MEMORANDUM OF LAW I. FACTUAL AND PROCEDURAL BACKGROUND 1. On November 15, 2016, Defendant properly scheduled and noticed Plaintiff’s deposition for December 19, 2016. Throughout the course of Plaintiff’s first deposition on December 19, 2016, Plaintiff asked to repeat or restate a question at least twenty-three (23) times. See, e.g., Ex. A, Ex. A, Pl. Depo. (12/19/16) pp. 4:12, 9:15, 11:8-12, 12:25, 16:7, 16:20- 21, 22:18, 29:4, 35:1, 40:6, 48:19, 94:5, 109:22, 123:12, 128:2, 128:17, 129:10, 146:22, and Case 8:16-cv-02773-SDM-TGW Document 216 Filed 03/08/19 Page 1 of 7 PageID 2388 2 148:17, and 149:17-149:18.1 Plaintiff also regularly avoided answering simple questions by giving unresponsive answer. See, e.g., Ex. A, Pl. Depo. (12/19/16) pp. 4:16 and 141:6-8. As a result, Defendant’s counsel noted on at least five (5) occasions that Plaintiff’s answer was unresponsive. See, e.g., Ex. A, Pl. Depo. (12/19/16) pp. 93:15-18, 95:2-3, 103:1-6, 141:9-15, 146:7-9. 2. Even after repeating each question – sometimes on multiple occasions, Plaintiff’s answers were regularly unresponsive. For instance, Q: Why didn’t you report this conduct to ISS? A: I reported it to John Hodges for two years. Q: What did you report to John Hodges? A: John Hodges. Q: Ma’am, you don’t have to scream. Q: I do when you’re being ignorant. And I’m getting really frustrated that you all ignore what you allowed to happen. Ex. A, Pl. Depo. (12/19/16) pp. 43:22-44:6. 3. Furthermore, because of all of the unresponsive answers during the four-hour deposition, the undersigned as well had to ask the court reporter to repeate questions or repeated the question himself at least thirty (30) times. See, e.g., Ex. A, Pl. Depo. (12/19/16) pp. 13:16- 17, 15:6-7, 16:8-9, 29:5-7, 36:8-13, 39:20-24, 40:6-7, 49:1-2, 59:9-12, 71:13-16, 72:12-14, 78:20-23, 91:20-24, 93:17-18, 94:6, 105:6-9, 114:5-7, 115:10-12, 119:9-10, 122:15-18, 123:3-4, 127:16-17, 128:25-129:2, 140:1, 145:8-9, 146:7-8, 148:18, 149:6-7. 4. Similarly, Plaintiff’s counsel repeatedly either interrupted the examination - objecting at least fifty (50) times - or suggested answers to her client. See, e.g., Ex. A, Pl. Depo. (12/19/16) pp. 73:3-74:35, 106:14-108:11, 115:22-16:17. 1 Plaintiff’s deposition on December 19, 2016 will be cited as: Pl. Depo. (12/19/16). Case 8:16-cv-02773-SDM-TGW Document 216 Filed 03/08/19 Page 2 of 7 PageID 2389 3 5. As the deposition progressed very slowly and certain topics could not be discussed, Plaintiff’s deposition continued on June 14, 2017. Unfortunately, the problems persisted. 6. Again, Plaintiff asked Defendant to repeat questions at least five (5) times during her short continuation. See, e.g., Ex. B, Ex. B, Pl. Depo. (6/14/17), pp. 173:16-17, 194:22-24, 221:11, 251:25-252:1, 254:14-15.2 Due to Plaintiff’s unresponsive answers, Defendant’s counsel asked the court reporter, or he himself, repeated a question at least eleven (11) times. See, e.g., Ex. B, Pl. Depo. (6/14/17), pp. 165:9-12, 169:25-170:1, 192:2-5, 199:6-13, 203:12-14, 204:20- 21, 208:12, 210:1-2, 215:23, 246:1-3, 248:12-13. Similarly, Plaintiff’s counsel repeatedly either interrupted the examination - objecting at least eighty-five (85) times - or suggested answers to her client. 7. Plaintiff’s answers continued to be unresponsive, requiring several follow up questions to obtain one direct response to Defendant’s question. Again and again, Plaintiff paused for several minutes before answering the question. For instance, Q: The question, ma’am, is: Did you take your written notes and put them in the trash after your employment ended at ISS? MS. THORPE: Objection. Asked and answered. A: I already answered the question, so I don’t know. Are you waiting on me? Sorry. Ex. B, Pl. Depo. (6/14/17), p. 203:5-11. 8. On January 15, 2019, this Court entered a Case Management and Scheduling Order whereby it granted Defendant permission to take the re-deposition of Plaintiff “up to four hours” because it allowed a dismissed count back into the case. See Dkt. 214. Plaintiff’s third deposition took place on February 7, 2019.3 2 Plaintiff’s deposition on June 14, 2017 will be cited as: Pl. Depo. (6/14/17). 3 Plaintiff’s deposition on February 7, 2019 will be cited as: Pl. Depo. (2/7/19). Case 8:16-cv-02773-SDM-TGW Document 216 Filed 03/08/19 Page 3 of 7 PageID 2390 4 9. Once again, during Plaintiff’s deposition on February 7, 2019, Plaintiff failed to answer Defendant’s question. For instance: Q: But all the information that you believe supports your claim of disability discrimination based on a perceived disability/handicap, you knew at the time you filed your original charge, correct? A: Again, I rely on my attorney to make these decisions and inform me of how to do this. So I can’t really answer. Ex. C, Pl. Depo. (2/7/19), p. 291:13-20. Q: What physical disability are you alleging you were perceived as having or regarded as having? A: You would have to ask your client. Ex. C, Pl. Depo. (2/7/19), pg. 300:22-24. Q: Okay. What I’m asking you is to tell me within those 40 hours, whatever you did during those 40 hours, tell me one thing that you were regarded as not being able to do. A: That they said I couldn’t work on the system. Q: Ma’am, again - - A: Again, I can’t help you. Ex. C, Pl. Depo. (2/7/19), pg. 302:3-10. Q: I’m asking you to describe for me what physical disability are you claiming that you were regarded as having? … A: I said they perceived me as unable to do my own work. So physical impaired, mental impaired. Write them down as both, if that will make you happy. Ex. C, Pl. Depo. (2/7/19), pg. 308:12–309:12. Q: Were you prevented or not allowed to perform any job functions up to the date of your discharge?? THE WITNESS: Say that again. (Question read back.) A: Yes. Q: Which ones? A: All of them on Friday. Q: What happened on Friday? A: They made me go off site. Q: Prior to you being made to go off site, were you not allowed to perform any job function up to that point? Case 8:16-cv-02773-SDM-TGW Document 216 Filed 03/08/19 Page 4 of 7 PageID 2391 5 A: Say that again. (Question read back.) MR. ZWETSCH: Let me strike that question. I’ll reask it. I’m sorry. Let me hear it again, please. (Question read back.) BY MR. ZWETSCH: Q: Please answer that question. THE WITNESS: Again. (Question read back.) A: No. Ex. C, Pl. Depo. (2/7/19), pg. 331:8–332:6. 10. In total, Plaintiff needed a question repeated, restated, or read back over 150 times. See highlights in Ex. C, Pl. Depo. (2/7/19). II. LEGAL ARGUMENT A deposition is limited to one day and seven hours “[u]nless otherwise stipulated by the parties or ordered by the court.” Burr v. Philip Morris USA, 2011 WL 13143904, at *2 (M.D. Fla. Oct. 19, 2011). However, the court may “allow additional deposition time if it is needed to fairly examine the deponent.” Id. Similarly, the court may also “sanction a person who impedes, delays, or frustrates the fair examination of a deponent.” Limu Co., LLC v. Burling, 2013 WL 1482760, at *1 (M.D. Fla. Apr. 11, 2013) (citing Fed. R. Civ. P. 30(d)(1)). In fact, the court has the inherent power to order a non-responsive or uncooperative party to refrain from behaviors intended to misuse the discovery process. See, e.g., Burr, 2011 WL 13143904, at *2 (“Plaintiff must refrain from engaging in uncooperative behavior that delays or frustrates the deposition, such as giving nonresponsive answers or refusing to answer questions on grounds other than those permitted by Rule 30, Fed. R. Civ. P.”). Here, Plaintiff’s deposition transcripts collectively illustrate a pattern of wasting significant time by means of Plaintiff’s frequent requests to repeat or clarify a question. Plaintiff’s unresponsive behavior caused prejudice to Defendant. Specifically, Defendant was Case 8:16-cv-02773-SDM-TGW Document 216 Filed 03/08/19 Page 5 of 7 PageID 2392 6 unable to complete questioning on key matters in this litigation, including but not limited to damages. Plaintiff’s unresponsive and evasive answers harmed Defendant’s attempt to create a clear and useful record for the defense. Accordingly, Defendant seeks a leave of approximately two (2) additional hours to complete Plaintiff’s deposition. Further, Defendant respectfully asks this court to admonish Plaintiff to provide clear and unequivocal answers to Defendant’s questions, as well as pay close attention to Defendant’s questions to reduce the frequency with which a question must be repeated. Defendant also respectfully asks this court to admonish Plaintiff to provide prompt responses to reduce the occurrence of minute-long delays between questions. WHEREFORE, Defendant respectfully requests this honorable Court to compel Plaintiff to return to complete her deposition and admonish Plaintiff to provide truthful, complete, and prompt answers to Defendant’s questions without a habitual request to repeat questions or delay in answering. DATED March 8, 2019. Respectfully submitted, /s/ Kevin D. Zwetsch Kevin D. Zwetsch Florida Bar No. 0962260 Ina F. Young Florida Bar No. 117663 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Telephone: 813.289.1247 Facsimile: 813.289.6530 kevin.zwetsch@ogletree.com ina.young@ogletree.com Attorneys for Defendant Case 8:16-cv-02773-SDM-TGW Document 216 Filed 03/08/19 Page 6 of 7 PageID 2393 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 8, 2019, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to Shaina Thorpe and James J. Thorpe, counsel for Plaintiff at: shaina@thorpelawyers.com; jim@thorpelawyers.com. I FURTHER CERTIFY that to the best of my knowledge there are not any non- CM/ECF participants that require notification of this response via U.S. Mail. /s/ Kevin D. Zwetch Kevin D. Zwetsch 37554949.1 Case 8:16-cv-02773-SDM-TGW Document 216 Filed 03/08/19 Page 7 of 7 PageID 2394