Case Name:   Luna v. Monterey Petroleum Inc., et al.

Case No.:       1-13-CV-250968

This is an action for a purported slip-and-fall.  The instant motion concerns a party’s failure to produce a blank incident report form.  Plaintiff Margie Luna (“Plaintiff”) noticed defendant Kuldeep Bhandal’s (“Kuldeep”) deposition and request for production of documents on March 18, 2014, requesting 99 categories of documents.  The breadth of the subject matter was fairly broad, and request for production of documents number 64, requested “All DOCUMENTS setting forth any and all of DEFENDANT’S policies, procedures and guidelines for responding to a personal injury on the SUBJECT PREMISES in effect on the date of the incident.”

At the deposition, after a couple hours of questioning, Plaintiff’s counsel “wonder[ed] why [Kuldeep] didn’t produce here today the form incident report that [Kuldeep] would have filled out if there was a fall.”  (Kuldeep depo. Transcript, p.54: 9-11.)[1]  Kuldeep responded that he “would only fill out an incident report if somebody had fallen, but no such incident has ever taken place.”  (Id. at p.54:12-14.)

Following this exchange, a bizarre and lengthy bantering between the deponent and the attorneys occurred, in which: the deponent, clearly perplexed by the situation, asked Plaintiff’s counsel if he asked for the document; Defendant’s counsel stated that he produced the documents; the deponent stated that he did not think it was important to bring the manual to the deposition; Plaintiff’s counsel stated that the reason why the deponent did not bring the blank incident report form was because the deponent did not believe it had anything to do with the policy or procedure regarding a personal injury on the premises; the deponent’s counsel noting that that was not a question; Plaintiff’s counsel responding that the statement was indeed a question; etc.  Counsel continued to debate whether the statement by Plaintiff’s counsel was in fact a question or not, and whether they were off the record; instructions not to answer the question ensued; demands were made to strike an allegedly non-responsive answer (a rather pointless statement in the context of a deposition); accusations the witness was being abused; threats to file a motion for protective order; and debate over whether the deposition would resume or be terminated.  (Id. at pp.55:15-25, 56:1-25, 57:1-25, 58:1-25, 59:1-25, 60:1-25, 61:1-21.)  The deponent’s counsel also stated that he would not allow abusive questioning of another defendant, Charan Bhandal (“Charan”).  It would consume at least another full page of this order to fully describe counsel’s repetitive arguments at the deposition, an exercise the Court chooses not to indulge in.

On June 17, 2014, Plaintiff moved to compel production of the blank incident report form, and the continued depositions of Kuldeep and Charan.  Plaintiff additionally seeks sanctions in the amounts of $5,794.20 against Kuldeep and his counsel, and $3,681.50 against Charan and his counsel.

In opposition, counsel for Kuldeep and Charan note that they attempted to get the depositions on calendar, but was advised that Plaintiff’s counsel would not continue the hearing dates or re-set the depositions until Plaintiff’s counsel was paid $6,495.70.  Counsel for Kuldeep and Charan also note that the blank incident report form does not exist, and if Plaintiff’s counsel had specifically requested the form, they could have responded that they were unable to produce such a form because it never existed.  Kuldeep and Charan also request the appointment of a discovery referee, and argue that they should not be sanctioned.

Here, the parties basically agree that the depositions of Kuldeep and Charan should resume.  However, the Court agrees with Kuldeep and Charan that the conduct of both parties’ counsel at deposition has been less than exemplary.  Section 8 of The Santa Clara County Bar Association Code of Professionalism states that “[a] lawyer should at all times be civil, courteous, and accurate in communicating with adversaries, whether in writing or orally.”  (Santa Clara County Bar Association Code of Professionalism, § 8.)  Section 9 of The Santa Clara County Bar Association Code of Professionalism, specifically with regards to deposition conduct, states that “[a] lawyer should avoid repetitive or argumentative questions or those asked solely for purposes of harassment… [and] should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”  (Santa Clara County Bar Association Code of Professionalism, § 9, subds. a(6) and a(11).)  Here, the petulant and childish behavior observed at the April 11, 2014 deposition constituted conduct that would not be allowed in most settings, much less in the presence of a judicial officer.  Counsel for both parties are hereby admonished for the violation of the Code of Professionalism.

Finally, counsel for Kuldeep and Charan is correct that the statement “I’m just talking about a blank incident report right now, and the reason why you didn’t bring a blank incident report is because to you, the way you run your business, blank incident reports have nothing to do with the policy or procedure that you do when there’s a personal injury at your premises” is only that, a statement and not a question.  There was no need to answer that purported “question” because it was an accusation, not a question.  Later, Plaintiff’s counsel did ask a question, by adding the phrase “isn’t that right?” following his statement; however, it was clear by both Kuldeep’s response and counsel for Kuldeep and Charan that Kuldeep did not know the answer because he was not the individual who was responsible for responding to the request for production of documents—rather, counsel for Kuldeep and Charan indicated that it was he and not Kuldeep who was so responsible.

Accordingly, the motions to compel the continued deposition of Kuldeep and Charan are GRANTED, and the motion to produce a blank incident report is DENIED; however, both parties’ counsel are cautioned that their conduct at the deposition shall adhere to the Code of Professionalism.  Based on the conduct at the deposition, Plaintiff’s request for sanctions is DENIED as the imposition of sanctions in this situation would be unjust.