LANDFALL 2, INC., a Florida corporation, Plaintiff, v. DATASCORE-AI, LLC, a Texas limited liability company; BRENT BIGGS, individually; and DATASCORE ENTERPRISES, CORP., a Delaware corporation, Defendants Case No. 22-cv-80801-MIDDLEBROOKS/MATTHEWMAN United States District Court, S.D. Florida Signed February 08, 2023 Counsel Darren Raymond Aponte, Aponte Law, P.A., Palmetto Bay, FL, for Plaintiff. Amy Yoon, Pro Hac Vice, Binah B. Yeung, Pro Hac Vice, Cairncross & Hempelmann, P.S., Seattle, WA, Woodrow Heath Pollack, Shutts and Bowen, LLP, Tampa, FL, for Defendants. Matthewman, William, United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT DATASCORE ENTERPRISES, CORP.’S MOTION TO COMPEL AND FOR SANCTIONS RELATING TO PLAINTIFF LANDFALL 2 INC.’S DEPOSITION MISCONDUCT [DE 46] *1 THIS CAUSE is before the Court upon Defendant Datascore Enterprises, Corp.’s Motion to Compel and For Sanctions Relating to Plaintiff Landfall 2 Inc.’s Deposition Misconduct (“Deposition Misconduct Motion”) [DE 46]. Plaintiff Landfall 2, Inc. (“Plaintiff”) failed to file a timely response as required by the Court.[1] See DE 47. Nonetheless, this Deposition Misconduct Motion is now ripe for review. See DEs 61, 66. I. BACKGROUND On December 7, 2022 Defendant filed its Deposition Misconduct Motion [DE 46], and—in light of the December 15, 2022 discovery cutoff deadline—the Court ordered expedited briefing. Specifically, the Court required Plaintiff to file a response to the Deposition Misconduct Motion on or before 5:00 p.m. on December 12, 2022. [DE 47]. The Court also scheduled a December 13, 2022 hearing on the motion, and required Defendant to “forthwith obtain and file the transcripts of the deposition(s) at issue, and [to] obtain the videotaped depositions including the audio recordings of those depositions for this Court's review.” Id. Plaintiff failed to timely file a response to the Deposition Misconduct Motion. In any event, because the Court's December 13, 2022 Zoom Video teleconference (“VTC”) hearing had also been set to address matters relating to discovery production, see DE 48, the Court discussed the conduct alleged in the Deposition Misconduct Motion at the December 13, 2022 hearing, despite the absence of any response from Plaintiff to said motion. However, because the Court wanted to review the transcripts, audio, and video prior to providing any final ruling on the matter—and because the Court had not yet been provided the transcript, audio, and video of the depositions—the Court reserved ruling on Rule 37(a) expenses and Rule 37(b) sanctions in connection with the Deposition Misconduct Motion. [DE 56 at 9, 15]. In this regard, the Court directed Defendant to “file the deposition transcripts excerpts, audiotape excerpts, and/or DVD excerpts (including a filing containing the page numbers and time-stamps of the conduct at issue), on or before December 21, 2022,” and allowed Plaintiff until December 28, 2022 “to provide additional excerpts or video/audio that refutes such allegations (with a filing containing specific page numbers and time-stamps).” Id. at 18. (emphasis omitted). But, while the Court reserved ruling on Rule 37(a) expenses and Rule 37(b) sanctions, the Court did find that “Plaintiff's privilege objections based on the Otolox line of questioning (and any objections connected to the Interrogatories at issue or to the eight referenced categories of documents) ha[d] been waived, both pursuant to the November 30, 2022 Order, and Plaintiff's failure to file a Protective Order.” Id. at 15. The Court therefore found that Defendant was “entitled to an additional [two-hour] deposition of Jack Agar concerning Otolox and any other questions/topics to which [Defendant] instructed the witness not to answer, as discussed at the December 13, 2022 hearing.” Id. (internal quotation marks omitted). *2 Subsequently, on December 21, 2022, Defendant timely filed a Notice of Filing of Deposition Transcripts, Audio, and Video Excerpts [DE 61]. In the Notice, Defendant stated its counsel “made a diligent effort to review the video recordings, audio records and transcripts to identify relevant excerpts, and stand by their description of events stated in the original [Deposition Misconduct] Motion.” [DE 61 at 2]. However, Defendant noted that “[d]uring the video-taped depositions, only the deposing and defending attorney plus the witness wore a microphone, and accordingly other audio occurring in the room was rarely picked up.” Id. In other words, Defendant appeared to admit many of the specific instances of purported misconduct were not adequately recorded. Plaintiff, in turn, filed a “Response in Opposition ... and Cross-Motion for Sanctions Against Defendants and Defense Counsel for Perpetrating Fraud on the Court Including Striking of Pleadings,” in response to both DE 61 and DE 58. [DE 66].[2] While the filing addressed DE 58 (which is irrelevant for purposes of the instant Order) and contained a Cross-Motion for Sanctions (which is also irrelevant for purposes of the instant Order, as the Court has already addressed the matter), with respect to DE 61 (Defendant's Notice of Filing of Deposition Transcripts, Audio, and Video Excerpts), Plaintiff stated that Defendant's allegations within the Deposition Misconduct Motion [DE 46] were “proven to be misrepresentations and lies.” [DE 66 at 2]. Indeed, utilizing the Declaration of Jason Fine—who had reviewed the recordings and attended the depositions—Plaintiff refuted Defendant's allegations concerning deposition misconduct. [DE at 64-1]. II. THE MOTION a. Defendant's Deposition Misconduct Motion [DE 46] Essentially, according to Defendant, during the depositions of Plaintiff's Rule 30(b)(6) corporate representative, Plaintiff's owner, and three of Plaintiff's employees—taken on November 28, November 29, December 1, and December 2, 2022—Plaintiff's corporate representative (Jason Fine) and Plaintiff's counsel, Darren Aponte, Esq., “engaged in deposition misconduct that was some of the most disruptive and egregious ... that [Defendant's] lead counsel has ever witnessed.” [DE 46 at 1]. Plaintiff's counsel also purportedly improperly instructed witnesses not to answer without promptly moving for a protective order,[3] and unilaterally terminated the deposition of employee Desiree Widstrand without sufficient cause. Id. at 3–5. Notably, Defendant asserted that Plaintiff's deposition misconduct included the following: 1. On multiple occasions after the completion of its Rule 30(b)(6) deposition, Landfall's Corporate Representative (who is not a lawyer) disrupted the remaining depositions by stating objections to questions and attempting to answer questions on behalf of the witness. 2. Instructing witnesses not to answer questions on bases other than those permitted by Fed. R. Civ. P. 30(c)(2), including on the basis of privilege objections that were expressly waived by this Court and for which Landfall has not sought a protective order. [DE 45]. 3. Unilaterally terminating the deposition of Ms. Widstrand on Day 3 after the witness stated she was capable of and preferred to continue questioning, and, after returning from a brief break, refusing to allow the witness to further confirm that she was comfortable and able to continue questioning. Upon returning on Day 4 to continue questioning, the witness was noticeably less knowledgeable and responsive on a number of subject matters. *3 [DE 46 at 2]. Defendant also alleged the following troublesome conduct: 1. Landfall was as much as 45 minutes late or unable to commence at the scheduled 10 am start time on three of the four deposition days. 2. Spoke and carried on audible conversations during questioning, such that multiple court reporters and videographers on multiple days asked Landfall's counsel and Corporate Representative to stop. 3. Took and initiated phone calls in the room during questioning. 4. Made hand gestures, wrote and passed notes, grunted, moaned, belched, and made side comments, in obvious display of the witness during and in response to questioning. 5. Ripped up, rustled, and threw balls of papers across the room during questioning. 6. Smoked an electronic cigarette or similar device (i.e. “vaped”) in the conference room during questioning. 7. At one point, Landfall's Corporate Representative gave its counsel a shoulder massage next to the witness and during questioning for several minutes. Id. III. ANALYSIS Under Rule 30(d)(2) of the Federal Rules of Civil Procedure, “[t]he court may impose an appropriate sanction—including the reasonable expenses and attorney's fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). Here, in light of the Court's prior finding that “Plaintiff's privilege objections based on the Otolox line of questioning (and any objections connected to the Interrogatories at issue or to the eight referenced categories of documents) have been waived, both pursuant to the November 30, 2022 Order, and Plaintiff's failure to file a Protective Order,” DE 56 at 19, and in light of the Court's finding that an additional two-hour deposition of Jack Agar was warranted based on Plaintiff's improper objections, id., the Court finds that Defendant is entitled to the costs and expenses of the additional two-hour deposition of Jack Agar. However, the Court has reviewed the provided transcripts, and the recorded audio and video, and does not clearly find any further sanctionable deposition conduct, whether viewed individually or in whole. While it is evident that Plaintiff's counsel at times may have distracted the deponent, much of the provided recordings contain whispers and barely audible audio or video that is not focused on the source of the alleged misconduct. The Court is simply unwilling to impose sanctions based on such. Moreover, although the Court has no doubt—based on what it has observed in this case—that certain behavior of Plaintiff and its counsel during the depositions may have been unprofessional, the Court finds that the purported deposition misconduct is a tempest in a teapot in comparison to Plaintiff and Plaintiff's counsel's other discovery misconduct in this case. To that end, the Court has already issued a Report and Recommendation, in which the Court recommended: (1) dismissal with prejudice of Plaintiff's Complaint [DE 1-3]; and (2) striking Plaintiff's pleadings—that is—Plaintiff's Answer to Defendant's Counterclaims [DE 28]. The Court sees no need to go any further on the instant Deposition Misconduct Motion. IV. CONCLUSION *4 The Court has carefully considered the relevant law, Defendant's Deposition Misconduct Motion [DE 46], argument of counsel during the December 13, 2022 Zoom VTC hearing, Defendant's Notice of Filing of Deposition Transcripts, Audio, and Video Excerpts [DE 61], and Plaintiff's “Response in Opposition ... and Cross-Motion for Sanctions Against Defendants and Defense Counsel for Perpetrating Fraud on the Court Including Striking of Pleadings” [DE 66], as well the entire docket in this case. Based on the foregoing, it is hereby ORDERED that Defendant's Deposition Misconduct Motion [DE 46] is GRANTED IN PART AND DENIED IN PART, as follows: 1. Defendant's Deposition Misconduct Motion is GRANTED to the extent that Defendant requests that it “be permitted to complete its lines of questioning concerning Otolox and any other questions/topics to which [Plaintiff] instructed the witness not to answer.” [DE 46 at 5]. Indeed, the Court has already granted such relief, pursuant to the Court's First Omnibus Interim Discovery Order, as the Court has already permitted an additional deposition of Jack Agar. See DE 56 at 15 (“[T]he Court finds that Defendant is entitled to an additional deposition of Jack Agar concerning Otolox and any other questions/topics to which [Plaintiff] instructed the witness not to answer, as discussed at the December 13, 2022 hearing.”) (internal quotation marks omitted). 2. Defendant's Deposition Misconduct Motion is also GRANTED to the extent that Defendant requests costs and expenses in connection with the additional deposition of Jack Agar. The additional costs and expenses awarded are pursuant to Rule 30(d)(2) of the Federal Rules of Civil Procedure. However, Defendant's Deposition Misconduct Motion is DENIED to the extent that Defendant requests any further relief. 3. The parties shall confer concerning the amount of costs and expenses in connection with Jack Agar's additional deposition. If the parties agree as to a cost amount, on or before February 22, 2023, the parties shall file a Joint Notice, advising the Court of the same. However, if the parties cannot reach an agreement (or if Plaintiff continues to fail to respond to Court Orders or cooperate in this case), then on or before February 24, 2023, Defendant shall file an affidavit or declaration and supporting documentation as to a proper cost and expense amount. Plaintiff shall then have until February 28, 2023, to file a response objecting to the costs and expenses sought by Defendant. No reply shall be filed unless directed by the Court. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 8th day of February, 2023. Footnotes [1] Plaintiff's failure to respond to Court Orders has been flagrant and has occurred repeatedly in this case and has been addressed in other filings by the Court. The Court assumes the reader's familiarity with those other Court filings. [2] Plaintiff filed the same document at DE 64 (which contained an erroneous attachment) and at DE 63 (which contained no attachments). [3] While Defendant contended Plaintiff's counsel instructed certain witnesses not to answer on bases other than privilege, Defendant also contended that Plaintiff's counsel instructed certain witnesses not to answer based on an assertion of privilege, which Defendant argued was waived pursuant to the Court's November 30, 2022 Order.