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CIELO CREATIONS, INC. v. GAO DA TRADING CO. LTD.

June 25, 2004.

CIELO CREATIONS, INC., Plaintiff,
v.
GAO DA TRADING CO. LTD., Defendant.



The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion

Plaintiff moves for attorneys fees and costs incurred in conducting a second day of deposition of Defendant company's principal. For the reasons below, Plaintiff's motion is granted in part.

FACTS

  On March 12, 2004, Plaintiff Cielo Creations, Inc. instituted this trademark infringement action against Gao Da Trading Co., Ltd., and obtained from this Court an order to show cause and a seizure order on the same date. On April 12, this Court entered, on the parties' consent, a preliminary injunction order during the pendency of this proceeding, which included a provision for expedited discovery and an order for recall ("Consent Order").

  Plaintiff wrote a letter to the Court, dated April 27, 2004, detailing Defendant's repeated failures to respond to discovery required by the Consent Order and to discovery requests subsequently propounded by Plaintiff, despite extensions of time and Plaintiff's efforts to obtain the responses. By order dated April 29, the Court directed Defendant to respond to the outstanding discovery requests specified in Plaintiff's April 27 letter and scheduled a conference with the Court for May 5.

  During the May 5 conference, and by order of the same date memorializing the conference, the Court directed Defendant to respond to all outstanding discovery requests in an expedited manner, and to produce its principal, Jian-Feng Dai, for deposition "noticed by counsel." (5/5/04 Order). The Court also stated to Defendant's counsel, Habin Wang,
I can't impress upon you enough that some hard work has to go into this in terms of trying to respond to the Plaintiff's requests. You are going to have to work with your client and try to help him find this information. That's really his duty and your duty as his lawyer in response to the court's order and, I believe it was, a consent judgment in this case. . . .
You [] have a bunch of questions that have been put to you [previously]. You can expect that those are the questions [Plaintiff is] going to want answers to. So I expect you to have your client prepared to respond at the deposition under oath. OK?
Of course, we all know what being under oath means. If you lie under oath there can be problems. So, I'd like him to be as prepared as possible and I need him to be forthcoming because that's his obligation once he's under oath. . . .
(5/5/04 Tr. at 13-14) (emphasis added).

  On May 17, 2004, Plaintiff noticed both a Rule 30(b)(6) deposition and the deposition of Mr. Dai, pursuant to Rule 30(A)(1). The deposition was conducted on May 21.

  Despite the Court's admonitions regarding the need to properly prepare Mr. Dai for his deposition, Mr. Dai admitted that he did not meet with his counsel to prepare for the deposition:*fn1

 
Q: Mr. Dai, what did you do to prepare for your deposition today?
A: Nothing. I have not prepared anything.
Q: Did you meet with your attorney?
A: No, besides meeting with him this morning downstairs. . . .
Q: So is it your testimony that you did not speak to your attorney at all about this deposition today?
MR. WANG: I object to this line of questioning. . . . Don't answer that.
  A colloquy between the attorneys ensued, resulting in Mr. Wang's objection on the grounds of privilege and his instruction to his client not to answer the question. (Dai Dep. at 14-18). In fact, in the course of five transcript pages, Mr. Wang instructed his client not to answer a pending question on grounds of attorney client privilege seven times, even though not one question requested information concerning the contents of an attorney-client communication. (Id. 14-19).*fn2

  Defendant's attorney was also inappropriately argumentative with the first translator brought in by Plaintiff to translate Mr. Dai's Mandarin Chinese into English. Although the translator was certified to translate Mandarin, Defendant's attorney continually argued with the interpreter and made speaking objections. Plaintiff's counsel requested that Mr. Wang cease making speaking objections and stated that all objections to translation would be preserved. Mr. Wang responded "I can not allow that." Mr. Wang suggested to Plaintiff's counsel that he should have hired someone whose first language was Mandarin, and went so far as make derogatory remarks about Hong Kong after the translator stated that she was raised there. (Dai Dep. at 38-40).

 
MR. WANG: Hong Kong is a place in the past Century was [sic] ruled by British.
INTERPRETER: So what? I learned Mandarin since I was in 7th Grade.
MR. WANG: [Interpreter], I speak from my experience here, in terms of language skills. People who are educated in Hong Kong, they belittle Mandarin because of the colonial culture.
  Mr. Wang continued on this topic for about a minute longer, and then the deposition went off the record. When it resumed, Plaintiff's counsel stated that the interpreter refused to continue the deposition and left. Plaintiff was able to obtain a second Mandarin translator, but she was only available from 12:30 to 4:00p.m.

  Plaintiff moves for attorneys fees and costs that it will incur in taking a second day of deposition of Mr. Dai on the grounds that this second day was necessitated by Mr. Dai's "lack of preparedness" and "defendant's counsel's aggressive interference in the questioning" during the first day of the deposition. (Pl's 5/26/04 Ltr. at 1).

  After reviewing the videotapes and the transcript of Mr. Dai's deposition, the Court finds Mr. Wang's conduct sanctionable under Federal Rule of Civil Procedure 37, 28 U.S.C. § 1927 and the Court's inherent ...


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