Trials & Litigation

Lawyer sanctioned for repeated deposition objections, 'prolonged and unnecessary argument'

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A federal magistrate judge in New York has sanctioned a lawyer and his client because of the lawyer’s repeated objections during a deposition.

U.S. Magistrate Judge Ona Wang ordered lawyer Scott Zarin and his client to pay half the costs of the Oct. 30, 2018, deposition, Law360 reports.

The motion for sanctions contended that Zarin repeatedly objected and engaged in “prolonged debates” with opposing counsel Mark Rosenberg during the deposition to the point that Zarin was testifying in place of his client.

In her Sept. 26 opinion, Wang agreed that Zarin objected too often and spoke too much.

Wang noted that Zarin speaks in 75% of the pages in the deposition transcript, excluding redirect and simple one-sentence objections. In the first half of the deposition, Wang said, Zarin “repeatedly made speaking objections, engaging in debates with defendants’ counsel about the question. This is improper.”

It is not counsel’s place to interrupt a question that is perceived to be unclear, Wang said, citing another federal court decision. Instead, the witness ought to make the determination.

Zang also said Zarin improperly suggested ways for his witness to answer questions and “engaged in a prolonged and unnecessary argument.”

Zarin represented the Fashion Exchange, which had sued clothing company Hybrid Promotions and a number of retailers for alleged infringement of its trademark “Hybrid & Company.” Because the Fashion Exchange included a claim for lost profits, the defendants wanted financial documents about royalty payments received by the plaintiff from its licensee, Fame Fashion.

Zarin had told the court that the royalty information had been lost because of a “computer issue,” but the plaintiff had reconstructed the information on a spreadsheet. The defendants then sought tax documents.

The corporate witness at the deposition was asked about royalties and the tax documents.

In examples that Wang included in her opinion, Zarin objected to a question about a name on the Fashion Exchange’s tax returns, objected to a question about whether the company was paid to sell its licensee’s products, and objected to a question about whether the deponent obtained any money from the Fashion Exchange when his brother obtained his shares.

This was one of the examples:

“Q: Who is Souny Nsiri. S-O-U-N-Y, N-S-I-R-I?

Mr. Zarin: Objection. Irrelevant. But if—

Mr. Rosenberg: That person’s name appears on the tax returns. That’s the subject of the deposition. Knock it off, Scott. Now you’re just—

(Multiples [sic] speakers.)

Mr. Zarin: Mark—

Mr. Rosenberg: —Interrupting and obstructing the—

Mr. Zarin: No. The subject of this deposition—and to the extent that the tax returns are relevant, they are relevant for the issue of how much the Fashion Exchange was paid in royalties from Fame Fashion. Nothing else.

Mr. Rosenberg: They’re relevant because I want to know if the tax returns are even accurate, and I want to know who these people are.

Mr. Zarin: But you haven’t got—if you want to ask questions about whether the tax returns are accurate, present him with the tax returns—

(Multiple speakers.)

Mr. Rosenberg: No.

Mr. Zarin: —And ask him those questions. That’s fine.

Mr. Rosenberg: Scott, I get to decide what order I ask my questions in and when I present documents. I’m asking: Who is the person? It’s a yes—it’s an easy question. What are you trying to hide here?

Mr. Zarin: But—but if the questions are irrelevant, then—then— [sic] which they are in all of these cases with respect to the questions that you have been asking so far, then I’m going to object to them being irrelevant. And I don’t think the witness needs to answer those questions that are not at all relevant to this case.

Mr. Rosenberg: Are you instructing the witness not to answer?

Mr. Zarin: I’m not instructing him not to answer. I’m saying he can answer if he knows.

By Mr. Rosenberg: Q. Who is—who is Souny Nsiri, S-O-U-N-Y, N-S-I-R-I?

A. I think he’s one of the partner [sic] in the Fashion Exchange.”

Wang said Zarin’s behavior was inappropriate, but it did not reflect a clear showing of bad faith that would justify sanctions for vexatiously multiplying the proceedings. The sanction was appropriate, however, under a federal procedural rule allowing sanctions for “impeding and frustrating the deposition,” Wang concluded.

Zarin didn’t immediately reply to the ABA Journal’s request for comment.

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