The Volokh Conspiracy - $29K Sanction for Client's Frequent Use of "Fuck" During Deposition:

The Legal Intelligencer reports:

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.

From the opinion:

Throughout his deposition, [Aaron Wider, the owner and chief executive officer of Defendant HTFC Corp,] sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity.
Q. [T]his is your loan file, what do Mr. and Mrs. Fitzgerald do for a living?
A. I don't know. Open it up and find it.
Q. Look at your loan file and tell me.
A. Open it up and find it. I'm not your fucking bitch.
Q. Take a look at your loan application.
A. Do it yourself. Do it yourself. You want to do this in front of a judge. Would you prefer to [do] this in front of a judge? Then, shut the fuck up.

(For more, including more excerpts from the deposition and the judge's explanation for why both the witness and his lawyer should be sanctioned, click here.)

Q. Sir, take a look--
A. I'm taking a break. Fuck him. You open up the document. You want me to look at something, you get the document out. Earn your fucking money asshole. Isn't the law wonderful. Better get used to it. You'll retire when I'm done...

Q. And you have a hard time comprehending. We're going to adjourn this deposition if this happens again because you are offending every single person.
A. Don't speak for anybody in here except yourself fuck face.
Q. I'm speaking for myself and I'm speaking for the Court Reporter.
A. If she had a problem with me she would say something. She knows it's [not] directed toward her. It's directed to you because you're a piece of shit and a piece of garbage and I'm the only person in your life that is fucking up your world and I enjoy it. I enjoy it and when you sit there and say I'm perpetrating a fraud I'm just better at the law than you are and you can't get in the fucking door and it's pissing you off. Keep trying.
The above [I've only excerpted part of the materials -EV] are only a few examples of Wider's hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony. In fact, Wider used the word "fuck" and variants thereof no less than 73 times. To put this in perspective--in this commercial case, where GMAC's claim is for breach of contract and HTFC's counterclaim is for tortious interference with contract--the word "contract" and variants thereof were used only 14 times. Such profuse vulgarity had no constructive purpose. The Court is left with the impression that such abusive language was chosen solely to intimidate and demean opposing counsel.

This impression is confirmed by Wider's repeated references to himself as "the professor" and a "doctor of law," and repeated expressions of his belief that counsel for GMAC is a "joke" and a "fucking idiot." ...

HTFC next argues that Wider's abusive and obstructive conduct is justified because he was merely reacting to deposing counsel's provocative and accusatory questions. This argument is simply astonishing. As evidenced in the video recording of the deposition, counsel for GMAC comported himself with courtesy, respect, and professionalism; this was no easy feat, considering Wider's unrelenting insults, vulgarity, and mockery, most of which were a direct assault on counsel for GMAC....

As evidenced by the portions of the record quoted at length above, throughout the deposition, notwithstanding the severe and repeated nature of Wider's misconduct, [Wider's lawyer, Joseph Ziccardi,] persistently failed to intercede and correct Wider's violations of the Federal Rules. Instead, Ziccardi sat idly by as a mere spectator to Wider's abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider's offensive conduct.

Even if a finding of bad faith were required here, the record, viewed as a whole, inexorably leads to the conclusion that Ziccardi's conduct was undertaken in bad faith. Given the length of the deposition and the severe, repeated, and pervasive nature of Wider's misconduct, it is clear that Ziccardi's failure to intervene was not merely negligent, but rather willful. Ziccardi's bad faith is further revealed by his challenges to opposing counsel to "file whatever motion you want to file" and his snickering at Wider's abusive conduct.... Because he has failed to show cause why sanctions should not be imposed, the Court will impose sanctions upon Ziccardi.

(Hide.)

	[Eugene Volokh, March 10, 2008 at 2:22pm] Trackbacks $29K Sanction for Client's Frequent Use of "Fuck" During Deposition: The Legal Intelligencer reports: A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in. From the opinion: Throughout his deposition, [Aaron Wider, the owner and chief executive officer of Defendant HTFC Corp,] sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity. Q. [T]his is your loan file, what do Mr. and Mrs. Fitzgerald do for a living? A. I don't know. Open it up and find it. Q. Look at your loan file and tell me. A. Open it up and find it. I'm not your fucking bitch. Q. Take a look at your loan application. A. Do it yourself. Do it yourself. You want to do this in front of a judge. Would you prefer to [do] this in front of a judge? Then, shut the fuck up. (For more, including more excerpts from the deposition and the judge's explanation for why both the witness and his lawyer should be sanctioned, click here.) Q. Sir, take a look-- A. I'm taking a break. Fuck him. You open up the document. You want me to look at something, you get the document out. Earn your fucking money asshole. Isn't the law wonderful. Better get used to it. You'll retire when I'm done... Q. And you have a hard time comprehending. We're going to adjourn this deposition if this happens again because you are offending every single person. A. Don't speak for anybody in here except yourself fuck face. Q. I'm speaking for myself and I'm speaking for the Court Reporter. A. If she had a problem with me she would say something. She knows it's [not] directed toward her. It's directed to you because you're a piece of shit and a piece of garbage and I'm the only person in your life that is fucking up your world and I enjoy it. I enjoy it and when you sit there and say I'm perpetrating a fraud I'm just better at the law than you are and you can't get in the fucking door and it's pissing you off. Keep trying. The above [I've only excerpted part of the materials -EV] are only a few examples of Wider's hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony. In fact, Wider used the word "fuck" and variants thereof no less than 73 times. To put this in perspective--in this commercial case, where GMAC's claim is for breach of contract and HTFC's counterclaim is for tortious interference with contract--the word "contract" and variants thereof were used only 14 times. Such profuse vulgarity had no constructive purpose. The Court is left with the impression that such abusive language was chosen solely to intimidate and demean opposing counsel. This impression is confirmed by Wider's repeated references to himself as "the professor" and a "doctor of law," and repeated expressions of his belief that counsel for GMAC is a "joke" and a "fucking idiot." ... HTFC next argues that Wider's abusive and obstructive conduct is justified because he was merely reacting to deposing counsel's provocative and accusatory questions. This argument is simply astonishing. As evidenced in the video recording of the deposition, counsel for GMAC comported himself with courtesy, respect, and professionalism; this was no easy feat, considering Wider's unrelenting insults, vulgarity, and mockery, most of which were a direct assault on counsel for GMAC.... As evidenced by the portions of the record quoted at length above, throughout the deposition, notwithstanding the severe and repeated nature of Wider's misconduct, [Wider's lawyer, Joseph Ziccardi,] persistently failed to intercede and correct Wider's violations of the Federal Rules. Instead, Ziccardi sat idly by as a mere spectator to Wider's abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider's offensive conduct. Even if a finding of bad faith were required here, the record, viewed as a whole, inexorably leads to the conclusion that Ziccardi's conduct was undertaken in bad faith. Given the length of the deposition and the severe, repeated, and pervasive nature of Wider's misconduct, it is clear that Ziccardi's failure to intervene was not merely negligent, but rather willful. Ziccardi's bad faith is further revealed by his challenges to opposing counsel to "file whatever motion you want to file" and his snickering at Wider's abusive conduct.... Because he has failed to show cause why sanctions should not be imposed, the Court will impose sanctions upon Ziccardi. (Hide.)