Month: December 2015

Seventh Circuit Affirms Sanction Against Attorney For False Allegation of Sexual Assault

The case is captioned Egan v. Pineda, 12 C 9034. The plaintiff brought a claim for sex discrimination and the creation of a hostile work environment. The case was eventually dismissed for lack of jurisdiction.

The lawyer for the plaintiff was sanctioned in the amount of $5,000 because of an allegation in the complaint. That paragraph  alleged that Ms. Egan

“was repeatedly caused to be subjected to unwelcome verbal and physical actions of a sexual nature and was further victimized by acts of sexual assault by the defendants’ male employees in her work environment throughout her employment tenure with defendants.”

The Seventh Circuit goes on to explain that: “the defendants included her employer, Huntington Copper, LLC, and one of its former owners, David Pineda. The paragraph we quoted could thus be understood to be accusing Pineda of having subjected the plaintiff to unwelcome “physical actions of a sexual nature” and of having been responsible for sexual assaults on her by male employees of Huntington.”

At her deposition, however, Egan denied that she had been sexually assaulted. Egan also testified that she had not written that paragraph in the complaint or seen it prior to her deposition. Pineda filed a motion for Rule 11 sanctions claiming that the paragraph was false and was very damaging to him. At a hearing before the district court, the attorney for plaintiff was unable to explain why the paragraph appeared in the complaint other than to say that it was an error and an “oversight.” The district court found this explanation was not sufficient and sanctioned the attorney $5,000. The Seventh Circuit affirmed holding that the district court did not abuse its discretion. The court explained that the lawyer’s “excuses are pathetic and leave us in the dark about how or why he falsified the complaint.”

Comment: I am also baffled at how a serious allegation of this type could end up in a complaint without several discussions between the attorney and the client. Obviously, even an allegation of sexual assault could ruin a career. The message is that you should be careful before accusing someone of serious misconduct.

Edward X. Clinton, Jr.

Rule 30(c)(1) – Pro Se Litigant’s Friend Cannot Attend Deposition

This is an unpublished order dealing with the conduct of a deposition under Rule 30(c)(1).  Rule 30(c) governs the conduct of a deposition. It provides:

(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

(1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.

(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

(3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.

In this case, the plaintiff wished to have his non-lawyer friend attend the deposition. The district court correctly ruled that the non-lawyer friend cannot attend the deposition. The court explained:

The Court finds that good cause exists here to enter a protective order precluding Mr. Watters from being present at Plaintiff’s deposition. As this Court noted in its 12/18/14 Order [ECF 69], Rule 30(c)(1) of the Federal Rules of Civil Procedure provides that examination of a witness at a deposition proceeds as at trial under the Federal Rules of Evidence. “[C]ourts have uniformly held that once a deposition starts, counsel has no right to confer [with his client witness] during the deposition [except to determine if a privilege should be invoked].” LM Insurance Corp. v. ACEO, Inc., 275 F.R.D. 490, 491 (N.D. Ill. 2011), and cases cited therein. If a witness cannot confer with his counsel about questions and answers once the deposition starts, then it stands to reason that the deponent may not confer with a third party for the purpose, for example, of refreshing his recollection. A deposition is intended to record under oath a witness’s own personal knowledge without the prodding or help of a third party including the witness’s counsel. The record also reveals that Mr. Watters likely would not be a mere observer at Plaintiff’s deposition. Based on previous interactions among Plaintiff, Mr. Watters and counsel for Defendant, Mr. Watters has interposed or inserted himself in oral and written communications between Plaintiff and Defendant and likely would interfere with the testimony that Defendant is entitled to obtain from Plaintiff based solely on Plaintiff’s recollection of events.


Questions on the conduct of depositions come up frequently, but it is always a good idea to check the rule.

Source: SIMKUS v. United Airlines, Dist. Court, ND Illinois 2015 – Google Scholar

5th Circuit Affirms Rule 11 Sanctions For Frivolous “Show-Me-The-Note” Foreclosure Defense

This is a nonprecedential disposition, but it is an example of a trend to sanction foreclosure defense lawyers who use the “show-me-the-note” defense. There is well-settled law in, I believe, all of the states that the defendant cannot defend a foreclosure action by asserting that the plaintiff does not have the original note. (Because mortgage notes are often assigned, this can be difficult to prove.)

In this particular case, plaintiff did show the defendant a copy of the note with an original signature. Despite this, defendants continued to assert the “show-me-the-note” defense in two further pleadings after they had seen the note.

The court also rejected the argument that the Defendants had abandoned the “show-me-the-note” defense by not raising it in their opposition to a motion for summary judgment.

However, Appellants dispute the district court’s finding that Appellants had not affirmatively withdrawn the show-me-the-note claims during the “safe harbor” period. Appellants argue that they abandoned the show-me-the-note claims by not making specific arguments in defense of those claims as part of their opposition to Select Portfolio’s motion for summary judgment. Appellants cite no authority for the proposition that abandoning a claim for summary judgment purposes is the equivalent of withdrawing or correcting the claim under Rule 11. Regardless, Appellants in this case did not merely fail to affirmatively indicate to the district court that they intended to withdraw the show-me-the-note claims; they also urged the court to deny Select Portfolio’s motion “in its entirety” and argued that genuine issues of material fact existed “on elements in each of Plaintiff’s remaining causes of action.

Source: BARRETT-BOWIE v. SELECT PORTFOLIO SERVICING, INCORPORATED, Court of Appeals, 5th Circuit 2015 – Google Scholar