_r . ('! . ,. ,, • ., ~ -· .. .;.;l ;_- ~-- ,'· lI lr '' l IN THE SUPERIOR COURT OF GUAM l )1- ~. !_,·i~ 1 2 ZC/ 11 r: W 19 M1 ....'n:., -·c; 3 CHRISTOPHER ALLEN,
4 Plaintiff, CIVIL CASE No. CV0191-09
5 v. DECISION AND ORDER 6 IAN C. RICHARDSON and JOHN YOUNG, 7 Defendants. 8
10 INTRODUCTION II This matter came before the Honorable Vernon P. Perez on October 25, 2013 on 12 Defendants' Motion for Protective Order. Defendants were represented by Assistant Att orney 13
14 General Kenneth Orcutt. Plaintiff was represented by James M. Maher. Having reviewed the
15 parties' arguments and pleadings, the Court now issues the following Decision and Order.
16 BACKGROUND 17 This litigation involves an alleged confrontation between Plaintiff Christopher Allen 18 ("Plaintiff') and Defendants Ian Richardson and John Young ("Defendants"). For purposes of 19 the instant motion, the relevant facts arise out of the deposition of one Andrew Zawalinski, 20 which took place on July 12, 2013. Counsel for the Defendants alleges that Plainitffs counsel's 21
22 conduct at that deposition violated the rules of civil procedure. As a result, counsel for
23 Defendants brought a Motion for a Protective Order. The parties remain at an impasse over the 24 manner in which future depositions are to be conducted. 25 DISCUSSION 26
27 Procedural Defects
28 As a preliminary matter, the Court must determine the effect any procedural defects will
have on the outcome of the instant motion. Before the Court is a discovery dispute. Thus, CVR Decision and Order CV0191-09; Allen v. Richardson and Young
Page 1 of 6 3 7.1 is applicable. The Court will discuss the relevant subsections of that rule. Pursuant to
2 CVR 37.1(a), "[p]rior to the filing of any motion relating to a discovery dispute, counsel for the
3 parties shall meet or attempt to meet in a good faith effort to eliminate the necessity for hearing 4 the motion or eliminate as many of the disputes as possible." CVR 37.l(a). In this case, the 5 parties argued at length regarding whether there was a good faith attempt to meet and confer. 6 Counsel for Defendant ("Mr. Orcutt") submitted a purported declaration arguing that he 7
8 exchanged emails and conferred with Plaintiff's counsel ("Mr. Maher") in a good faith attempt
9 to resolve the matter. Decl. of Kenneth Orcutt ~ 7. Mr. Maher maintains that the email 10 correspondence was merely to select a place to meet and confer. Decl. of James Maher~ 22. 11 Further, Mr. Maher maintains that Mr. Orcutt met with him only to have Mr. Maher sign a 12
13 stipulation, which Mr. Maher refused to sign. /d. at~ 24. Mr. Maher's refusal prompted Mr.
14 Orcutt to leave. /d. at~ 25. The duration of the meeting lasted approximately sixty seconds. 15 /d. at~ 26; Decl. of Mitchell F. Thompson~ 5. The above meeting would not have been in 16 compliance with CVR 37.1(a). However, the Court heard arguments on the matter on October 17 25, 2013, and directed the parties to meet and confer once more in attempt to resolve their 18
19 issues. Both parties met on November 7, 2013 but were unsuccessful in resolving the issue.
20 As a result of another unsuccessful meet and confer, CVR 37.l(b) requires that the 21 parties then "formulate a written stipulation specifying separately and with particularity each 22 issue that remains to be determined at the hearing." CVR 37.1 (b). The Court has yet to receive 23 any stipulation, but because the Court held a hearing on the matter, the Court is able to discern 24
25 where the parties' remain at an impasse. The Court admonishes both parties to cooperate in the
26 future in order to adhere to the rules. 27 Mr. Maher further argues that the Court should disregard Mr. Orcutt's declarations 28 because they were not executed under oath. PI's. Opp. pg. 3. Mr. Maher cites to 6 GCA §
Decision and Order CV0191-09; Allen v. Richardson and Young
Page 2 of6 7302, which defines "an affidavit as a written declaration under oath ...." 6 GCA § 7302. Mr.
2 Orcutt responds by citing to 6 GCA § 4308, which governs declarations. The Court finds Mr.
3 Orcutt's declarations sufficient as they were executed "under penalty of perjury." Decl. of 4 Kenneth Orcutt. Although the Court recognizes procedural missteps pertaining to the instant 5 motion the Court will still decide this case on its merits. 6
Protective Order 7
8 Rule 26(c) allows a court to issue a protective order when the party seeking the order
9 establishes good cause for it and it is necessary to protect a party or person from annoyance, 10 embarrassment, or undue burden or expense. GRCP 26(c). The party seeking the order bears 11 the burden of establishing that a protective order is needed. Jadwin v. Abraham, 2008 WL 12
13 4057921(E.D. Cal. 2008). Mr. Orcutt states that in his extensive legal career he has not
14 witnessed an attorney behave the way Mr. Maher had at the deposition. Decl. of Kenneth 15 Orcutt~ 3. Mr. Orcutt further submits that "[i]ssuing a protective order will send a message to 16 the Guam bar that professional conduct is required at depositions and that failure to conduct 17 oneself in such a manner will result in sanctions." Decl. of Kenneth Orcutt ~ 5. On those bases 18
19 alone, the Court is unable to precisely determine whether there is good cause for a protective
20 order and whether a protective order is necessary. The Court will look to the deposition 21 transcripts to determine whether good cause exists and whether a protective order is necessary. 1 22 Below is one of several dialogues between counsels that the Court has reviewed in order to 23 determine whether a protective order is warranted in this matter. 24
25 By Mr. Orcutt: Q In your mind, what constitutes legal service? 26 Mr. Maher: You're asking for a legal definition. 27 1 28 Mr. Maher urges the Court not to consider the unauthenticated deposition transcripts of Andrew Zawalinsk i. However, in his opposition, Mr. Maher further cites to the same deposition questions at issue without raising an serious concern as to its accuracy or validity. For the purpose of disposing this motion, the Court will review an consider the s ecific de osition uestions alon with the subse uent dialoo ue of counsels. Decision and Order CVO 191-09; Allen v. Richardson and Young
Page 3 of6 By Mr. Orcutt: (Continuing) Q In your mind, what constitutes legal service? 2 Mr. Maher: Well, he can't answer that. Mr. Orcutt: Yes, he can. 3 Mr. Maher: No. That's a term of art, Ken. Mr. Orcutt: It's not when you ask a person- the witness's opinion. 4 Mr. Maher: Service. He can't render an opinion. 5 Mr. Orcutt: Give your objection. Give your objection. Mr. Maher: I'm stating my objection. You're asking him to state a legal 6 principle. He can't do that. You're only doing this later so you can argue, see, he doesn't understand "service." 7 Mr. Orcutt: This is totally improper and frankly sanctionable. 8 Mr. Maher: Oh, go get a sanctions order, then, Ken. You're asking him for a legal conclusion. You know that's improper. 9 Mr. Orcutt: Are you done? 10 Mr. Maher: No, I'm not. Mr. Orcutt: Keep going. 11 Mr. Maher: Are you gonna ask this improper question? Are you gonna continue with it? By your hand shaking and water drinking, does that mean yes? 12 Well, give me an answer. 13 Mr. Orcutt: Are you done? Mr. Maher: No. Do you want his legal opinion? Yes or no? 14 Mr. Orcutt: You keep doing this, I'm gonna call the judge or- Mr. Maher: Go call the judge. The judge is gonna tell you it's an 15 improper question. 16 Zawalinski Dep. 33:21-25; 34:1-25; 35: 1-25, July 12, 2013. Mr.
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_r . ('! . ,. ,, • ., ~ -· .. .;.;l ;_- ~-- ,'· lI lr '' l IN THE SUPERIOR COURT OF GUAM l )1- ~. !_,·i~ 1 2 ZC/ 11 r: W 19 M1 ....'n:., -·c; 3 CHRISTOPHER ALLEN,
4 Plaintiff, CIVIL CASE No. CV0191-09
5 v. DECISION AND ORDER 6 IAN C. RICHARDSON and JOHN YOUNG, 7 Defendants. 8
10 INTRODUCTION II This matter came before the Honorable Vernon P. Perez on October 25, 2013 on 12 Defendants' Motion for Protective Order. Defendants were represented by Assistant Att orney 13
14 General Kenneth Orcutt. Plaintiff was represented by James M. Maher. Having reviewed the
15 parties' arguments and pleadings, the Court now issues the following Decision and Order.
16 BACKGROUND 17 This litigation involves an alleged confrontation between Plaintiff Christopher Allen 18 ("Plaintiff') and Defendants Ian Richardson and John Young ("Defendants"). For purposes of 19 the instant motion, the relevant facts arise out of the deposition of one Andrew Zawalinski, 20 which took place on July 12, 2013. Counsel for the Defendants alleges that Plainitffs counsel's 21
22 conduct at that deposition violated the rules of civil procedure. As a result, counsel for
23 Defendants brought a Motion for a Protective Order. The parties remain at an impasse over the 24 manner in which future depositions are to be conducted. 25 DISCUSSION 26
27 Procedural Defects
28 As a preliminary matter, the Court must determine the effect any procedural defects will
have on the outcome of the instant motion. Before the Court is a discovery dispute. Thus, CVR Decision and Order CV0191-09; Allen v. Richardson and Young
Page 1 of 6 3 7.1 is applicable. The Court will discuss the relevant subsections of that rule. Pursuant to
2 CVR 37.1(a), "[p]rior to the filing of any motion relating to a discovery dispute, counsel for the
3 parties shall meet or attempt to meet in a good faith effort to eliminate the necessity for hearing 4 the motion or eliminate as many of the disputes as possible." CVR 37.l(a). In this case, the 5 parties argued at length regarding whether there was a good faith attempt to meet and confer. 6 Counsel for Defendant ("Mr. Orcutt") submitted a purported declaration arguing that he 7
8 exchanged emails and conferred with Plaintiff's counsel ("Mr. Maher") in a good faith attempt
9 to resolve the matter. Decl. of Kenneth Orcutt ~ 7. Mr. Maher maintains that the email 10 correspondence was merely to select a place to meet and confer. Decl. of James Maher~ 22. 11 Further, Mr. Maher maintains that Mr. Orcutt met with him only to have Mr. Maher sign a 12
13 stipulation, which Mr. Maher refused to sign. /d. at~ 24. Mr. Maher's refusal prompted Mr.
14 Orcutt to leave. /d. at~ 25. The duration of the meeting lasted approximately sixty seconds. 15 /d. at~ 26; Decl. of Mitchell F. Thompson~ 5. The above meeting would not have been in 16 compliance with CVR 37.1(a). However, the Court heard arguments on the matter on October 17 25, 2013, and directed the parties to meet and confer once more in attempt to resolve their 18
19 issues. Both parties met on November 7, 2013 but were unsuccessful in resolving the issue.
20 As a result of another unsuccessful meet and confer, CVR 37.l(b) requires that the 21 parties then "formulate a written stipulation specifying separately and with particularity each 22 issue that remains to be determined at the hearing." CVR 37.1 (b). The Court has yet to receive 23 any stipulation, but because the Court held a hearing on the matter, the Court is able to discern 24
25 where the parties' remain at an impasse. The Court admonishes both parties to cooperate in the
26 future in order to adhere to the rules. 27 Mr. Maher further argues that the Court should disregard Mr. Orcutt's declarations 28 because they were not executed under oath. PI's. Opp. pg. 3. Mr. Maher cites to 6 GCA §
Decision and Order CV0191-09; Allen v. Richardson and Young
Page 2 of6 7302, which defines "an affidavit as a written declaration under oath ...." 6 GCA § 7302. Mr.
2 Orcutt responds by citing to 6 GCA § 4308, which governs declarations. The Court finds Mr.
3 Orcutt's declarations sufficient as they were executed "under penalty of perjury." Decl. of 4 Kenneth Orcutt. Although the Court recognizes procedural missteps pertaining to the instant 5 motion the Court will still decide this case on its merits. 6
Protective Order 7
8 Rule 26(c) allows a court to issue a protective order when the party seeking the order
9 establishes good cause for it and it is necessary to protect a party or person from annoyance, 10 embarrassment, or undue burden or expense. GRCP 26(c). The party seeking the order bears 11 the burden of establishing that a protective order is needed. Jadwin v. Abraham, 2008 WL 12
13 4057921(E.D. Cal. 2008). Mr. Orcutt states that in his extensive legal career he has not
14 witnessed an attorney behave the way Mr. Maher had at the deposition. Decl. of Kenneth 15 Orcutt~ 3. Mr. Orcutt further submits that "[i]ssuing a protective order will send a message to 16 the Guam bar that professional conduct is required at depositions and that failure to conduct 17 oneself in such a manner will result in sanctions." Decl. of Kenneth Orcutt ~ 5. On those bases 18
19 alone, the Court is unable to precisely determine whether there is good cause for a protective
20 order and whether a protective order is necessary. The Court will look to the deposition 21 transcripts to determine whether good cause exists and whether a protective order is necessary. 1 22 Below is one of several dialogues between counsels that the Court has reviewed in order to 23 determine whether a protective order is warranted in this matter. 24
25 By Mr. Orcutt: Q In your mind, what constitutes legal service? 26 Mr. Maher: You're asking for a legal definition. 27 1 28 Mr. Maher urges the Court not to consider the unauthenticated deposition transcripts of Andrew Zawalinsk i. However, in his opposition, Mr. Maher further cites to the same deposition questions at issue without raising an serious concern as to its accuracy or validity. For the purpose of disposing this motion, the Court will review an consider the s ecific de osition uestions alon with the subse uent dialoo ue of counsels. Decision and Order CVO 191-09; Allen v. Richardson and Young
Page 3 of6 By Mr. Orcutt: (Continuing) Q In your mind, what constitutes legal service? 2 Mr. Maher: Well, he can't answer that. Mr. Orcutt: Yes, he can. 3 Mr. Maher: No. That's a term of art, Ken. Mr. Orcutt: It's not when you ask a person- the witness's opinion. 4 Mr. Maher: Service. He can't render an opinion. 5 Mr. Orcutt: Give your objection. Give your objection. Mr. Maher: I'm stating my objection. You're asking him to state a legal 6 principle. He can't do that. You're only doing this later so you can argue, see, he doesn't understand "service." 7 Mr. Orcutt: This is totally improper and frankly sanctionable. 8 Mr. Maher: Oh, go get a sanctions order, then, Ken. You're asking him for a legal conclusion. You know that's improper. 9 Mr. Orcutt: Are you done? 10 Mr. Maher: No, I'm not. Mr. Orcutt: Keep going. 11 Mr. Maher: Are you gonna ask this improper question? Are you gonna continue with it? By your hand shaking and water drinking, does that mean yes? 12 Well, give me an answer. 13 Mr. Orcutt: Are you done? Mr. Maher: No. Do you want his legal opinion? Yes or no? 14 Mr. Orcutt: You keep doing this, I'm gonna call the judge or- Mr. Maher: Go call the judge. The judge is gonna tell you it's an 15 improper question. 16 Zawalinski Dep. 33:21-25; 34:1-25; 35: 1-25, July 12, 2013. Mr. Orcutt's main objective in 17 seeking a protective order pertains to speaking objections of opposing counsel. Mr. Maher's 18
19 main objections are that Mr. Orcutt's questions are improper. Pursuant to GRCP 30(c)
20 All objections made at the time of the examination to the qualification of the officer taking the deposition, to the manner of taking it, to the evidence presented, 21 to the conduct of any party, or to any other aspect of the proceedings shall be 22 noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections. 23 GRCP 30(c). 24
25 Further, Rule 30(d)(l) ofthe Guam Rules of Civil Procedure provides:
26 Any objection during a deposition must be stated concisely and in a non- argumentative and non-suggestive manner. A person may instruct a deponent not 27 to answer only when necessary to preserve a privilege, to enforce a limitation 28 directed by the court, or to resent a motion under Rule 30(d)(4)."
GRCP 30(d)(l). A speaking objection is an objection that is argumentative or which suggests Decision and Order CV0191-09; Allen v. Richardson and Young
Page 4 of6 an answer to a witness. Jadwin v. Abraham, WL 2008 WL 4057921 (E.D. Cal. 2008). Pursuant
2 to the above-referenced rules, speaking objections are not permitted. Upon review of the
3 deposition transcripts 2 , the proper action for Mr. Maher would have been to simply state his 4 objection and the grounds for it, and allow the witness to answer. The Court finds there is good .5 cause for Defendants' seeking a protective order. To prevent this issue from reoccurring at later 6 depositions, if any, the Court will grant Defendants' Motion for Protective Order. See 7
8 Cincinatti Ins. Co. v. Serrano, 2012 WL 28071 (granting Motion for Protective order and
9 ordering parties to comply with the relevant rules relating to depositions and discovery). lO The Court, however, orders that the protective order be mutual and binding on both 11 parties. Both parties are to adhere to GRCP 30(c) and 30(d)(1). There shall be no speaking 12
13 objections i.e. objections must be stated concisely and in a non-argumentative and non-
14 suggestive manner. Counsels may instruct a deponent not to answer only when necessary to 15 preserve a privilege, to enforce a limitation directed by the court, or to present a motion under 16 Rule 30(d)(4). Objections to the responsiveness of answers must also be made in compliance 17 with the rules i.e. by simply stating, "move to strike as unresponsive." Neither counsel shall 18
19 interrupt the witness when the witness is answering a question. Lastly, neither counsel shall
20 answer the questions for the witnesses. Violations of this order will subject the violating 21 counsel to sanctions as the Court deems just and appropriate. 22 II 23 II 24
25 II
26 II 27 II 28 2 The Court reviewed Zawalinski Dep. 20:1-25; 26:2-25; 27:1-25; 33:21-25; 34:1-25; 35:1-25; 36:1-11; 38: 1-25,
Jul 13, 2013. Decision and Order CV0191-09; Allen v. Richardson and Young
Page 5 of6 CONCLUSION Based on the foregoing reasons, the Court GRANTS Defendants' Motion for Protective 2
3 Order.
5 IT IS SO ORDERED this day of March J1_, 2014. 6
9 Judge, Superior Court of Guam 10
II
l3
18 SERV1CE VIA COURT BOX 1 acknowledge thut a copy ol' the Original hereto wa.~ placed in the 19
20 If{J'tW.M,k. 21 Dat~ 1/1/ l'f~_Tinc: OW'\!
Decision and Order CV0191-09; Allen v. Richardson and Young Page 6 of 6