Court filing
RESPONSE in Opposition re 52 First MOTION for Protective Order To Terminate Rule… — Agent Fee Litigation (Dkt. 73)
Summary
Plaintiff Sport & Wheat CPA PA's opposition to Synovus Bank's motion to terminate its own deposition, filed as Dkt. 73 in Case No. 3:20-cv-5425-TKW-HTC in the U.S. District Court for the Northern District of Florida, dated July 6, 2020. The brief sets out Fed. R. Civ. P. 30(c), Fed. R. Civ. P. 30(d) and Fed. R. Civ. P. 37(a)(5), with Local Rule 7.1(B), as the governing law. It recounts a remote video deposition of the bank and says questioning ran through eleven of the eighteen pages of text-message screenshots marked as Exhibit E before the bank's counsel objected and ended the deposition. It asks the court to deny the motion, to award the plaintiff its attorney fees, and to order the deposition concluded if the stay on discovery is lifted. The filing attaches the deposition notice and transcript and certifies 6,843 words.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT CPA PA,
a Florida corporation, individually and
on behalf of a class of similarly situated
businesses and individuals,
Plaintiff,
Case No. 3:20-cv-5425-TKW-HTC
v.
SERVISFIRST BANK INC., et al.,
Defendants.
PLAINTIFF SPORT & WHEAT’S OPPOSITION TO
SYNOVUS BANK’S MOTION TO TERMINATE ITS OWN DEPOSITION
Sport & Wheat has tried to work with Synovus throughout this litigation.
From the outset, Synovus has responded with extreme aggression and hostility.
Synovus now accuses Sport & Wheat of breaching “all professional courtesies.”
The Court should recognize what an extremely thin motion this is. Several
pages are wasted complaining about the fact that this action was filed, but in all 20
pages, Synovus has cited exactly one case in support of its overblown argument that
this deposition was “unfair, unlawful, and [in] bad faith.” (Mot. at 5.) The full, final
deposition transcript was available to Synovus the same day it filed this motion, but
Synovus did not file it, claiming it needed a protective order, which it has never
sought. (Mot. at 3, n.1) This motion is all about eighteen screenshots’ worth of text
1
messages, but Synovus didn’t file them either and still doesn’t want the Court to
see them—even under seal. And although it complained mightily about the scope
of the deposition, it did not file the deposition notice either. (Mot. at 8, n.6.)
In this motion, Synovus directly attacks the character and professionalism of
an attorney. That is a very serious charge. And it is very telling that Synovus did not
come forward with any evidence to support that charge.
Nothing untoward happened at this deposition—except that one of the
parties walked out with plenty of questions pending. Even after that happened,
Sport & Wheat was willing to drop the entire issue for now. Having been forced to
defend itself—and its own lawyer’s professionalism—Sport & Wheat seeks
attorney fees for the time spent on this motion.
I. Governing law.
Fed. R. Civ. P. 30(c) provides in part: “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.”
Fed. R. Civ. P. 30(c)(2) provides in part: “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
2
deposition—must be noted on the record, but the examination still proceeds; the
testimony is taken subject to any objection.” (Emphasis added.)
Fed. R. Civ. P. 30(d) states in part:
(d) Duration; Sanction; Motion to Terminate or Limit.
(2) Sanction. The 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.
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the
deponent or a party may move to terminate or limit
it on the ground that it is being conducted in bad
faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.
...
Fed. R. Civ. P. 37(a)(5) provides that a motion seeking discovery which is
granted by a court requires attorney’s fees to be awarded in favor of the movant,
unless the movant “filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action.” The same rule holds that when a
discovery motion is denied, the court must award reasonable fees to the party that
opposed the motion, unless the motion was substantially justified.
Paragraph 7 of the Court’s Initial Scheduling Order, ECF No. 16, states that
the Court ordinarily awards fees for time spent filing and arguing discovery
motions.
3
Loc. R. 7.1(B) requires the parties to confer prior to filing any motion raising
an issue.
II. The facts of this deposition.
The Court ordered that discovery should begin immediately. (ECF No. 16.)
Accordingly, on May 29, Sport & Wheat served a deposition notice on Synovus.
(Mot. Ex. 3, at 2.)
Synovus absolutely misrepresents this notice, from the get-go. In Synovus’s
telling, the choice to serve a deposition notice was malicious, improper—
“exceedingly odd.” (Mot. 9.) Synovus leaves out the completely reasonable nature
of the initial communication serving the notice. Sport & Wheat was extremely
polite:
Request for 30(b)(6) deposition
Regarding the deposition of Synovus Bank: we would like
to have this on June 5. I never just spring notices on
people, but I wanted you to see the topics now. If that
does not work, we are willing to go into the next week
( June 8-12). Please tell us the physical location of the
witness, but we expect to conduct the entire thing via
Zoom. I will amend the notice once we have worked out
the details.
(Mot. Ex. 3 at 2 (emphasis added).) Sport & Wheat did not “spring” the notice on
anyone. Moreover, the e-mail stated, “I am grateful for the help and will do what I
4
can to repay the favor. My personal cell number is . . . and I am happy to talk with
any of you. Have a good weekend.”
This friendly opening e-mail was met with an aggressive response.
Ultimately, as Synovus correctly recounts, the parties agreed on the
deposition date of June 18—two weeks after Sport & Wheat’s preferred date of
June 5. (Mot. at 9.) June 18 was a date that Synovus offered and Sport & Wheat
accepted. The deposition notice is attached. (Ex. A.)
This deposition was taken remotely using Zoom. Sport & Wheat’s attorney,
Bill Cash, now lives in Chicago full time. John Wirt and Pamela Wirt, also counsel
for Sport & Wheat, attended the deposition. The Wirts also maintain an office in
Illinois and were attending the deposition from Wisconsin.
There is nothing nefarious about taking a remote deposition, contra
Synovus’s insinuations that this was some kind of tactic. (Mot. at 12.) There is a
global pandemic afoot. Levin Papantonio lawyers are forbidden from taking
airplanes. Currently (but not at the time of the deposition), Chicago residents are
required to quarantine for 14 days if they travel to virus hotspots including Florida.1
1
City of Chicago press release ( Jul. 2, 2020), available at
https://www.chicago.gov/city/en/depts/cdph/provdrs/health_protection_and_re
sponse/news/2020/july/chicago-department-of-public-health-commissioner-
issues-emergenc.html.
5
Cash has not left the city for months. Unusual times require video depositions; they
are suddenly the norm in federal litigation.
On June 9, Synovus served discovery on Sport & Wheat, including a request
for production of documents and interrogatories, so Sport & Wheat’s response was
due July 9.
Thus, by offering a deposition date of June 18, Synovus knew full well it was
heading into a deposition without a document production or interrogatory
responses from Sport & Wheat. That was Synovus’s choice. Synovus could have
offered a later date, refused to sit for deposition until July 9, or even moved for a
protective order. However much it complains, Synovus went into this
deposition knowing full well that it did not have any of Sport & Wheat’s
documents. Synovus presented its witness on the date it chose, in the location it
chose, using technical means it agreed to.
Although Synovus chose not to, Sport & Wheat has attached the entire
transcript of this deposition to this brief. (Ex. B.) The Court may be inclined to take
the time to review it in full. Sport & Wheat stands behind it.
At the deposition, Synovus had a large screen showing plaintiff’s counsel,
and counsel could see the witness and some of defense counsel. The witness had
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access to a second computer, on which he could read documents. Everyone in the
room had ample access to see documents that were being displayed.
The witness testified that he was prepared to testify about all
“communications the bank had with Sport & Wheat, any communications inside
the bank about Sport & Wheat, transactions Sport & Wheat participated in, and so
on.” (Ex. B, Adams Dep. 14:6−16.) He also testified, however, that he did almost
nothing to specifically learn about Sport & Wheat’s involvement with the bank. Id.
at 14:24−16:7. He interviewed no one, contacted no one, and did nothing to
determine the extent of Synovus’s communications with Sport & Wheat. Id.
Sport & Wheat displayed its exhibits on the large screen and the second
laptop provided to the witness. Synovus’s lawyers argued that they were entitled to
see the exhibits before the witness was questioned. Id. at 42:12−15. Sport & Wheat
agreed to that procedure: “That’s fine. But you’re going to have to sit there by the
witness then and you’re going to have to read every page. If that’s how you want to
do it, that’s fine.” Id. at 42:16−43:9. The first exhibit was an e-mail from a bank
manager discussing how busy the bank was getting. (Ex. C.) There were no
problems with this exhibit, and Synovus doesn’t complain about it now.
The second exhibit used with the witness, Ex. D, also proceeded
uneventfully. Ex. D was an e-mail chain between Sport & Wheat and a Synovus
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employee called Anna Weaver. No one objected to the Zoom procedure or the
display of the exhibit to the witness. (Ex. B, Adams Dep. At 106:22−107:15.) Sport
& Wheat’s counsel was polite and considerate: “Let me know when you guys are
ready and I will try to make it a little bigger. Does that help?” Id. The witness was
able to see the document and answered several questions about it. Id. at
106:8−110:15.
The point of Ex. D was to lay the foundation for another exhibit, a composite
set of selected text messages between Anna Weaver and Sport & Wheat’s principal,
Jill Sport. This exhibit was Ex. E and it was marked on page 116 of the deposition.
Sport & Wheat has redacted Ex. E in pink, under the Florida accountant-client
privilege, Fla. Stat. § 90.5055.
Other than the pink redactions, Ex. E is exactly what the witness saw during
the deposition. Synovus is flat wrong when it says that Sport & Wheat attached
“redacted versions” of these messages to this deposition. (Mot. at 12.) Ex. E is the
exhibit that was introduced; the grey boxes on Ex. E were shown to the witness as
well.
To be clear, Sport & Wheat would have shown additional text messages to
this witness, but Synovus walked out of the deposition, preventing it from doing so.
Sport & Wheat also had other texts with a second bank employee it would have
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used. Sport & Wheat would still like to provide all available messages to the Court
under seal.
Ex. E has eighteen pages—each page being a screenshot of some text
messages. Synovus does not tell the Court that it allowed Sport & Wheat to
conduct this examination with eleven pages of these eighteen pages of screenshots
before it began objecting. (Ex. B, Adams Dep. 116:7−124:18.) These questions were
absolutely courteous: “Q. Do you see that? A. I do see that.” Id. at 117:2−12.
Many of the text messages establish that, contra Synovus’s arguments in its
motion to dismiss, ECF No. 46 at 5 (“Synovus is unaware of any communications
from S&W inquiring about” payment), the bank did communicate with and rely on
Sport & Wheat for help in processing loan applications, and Sport & Wheat did
seek to be paid.
For example, in the texts, Sport & Wheat asked if bank statements would
need to be provided, and Ms. Weaver responded. (Ex. E at 2−3.) The witness read
these texts and answered a question about it:
Q. Okay. And Ms. Sport here says, “Other banks are
asking for bank statements to support payroll
amounts. Any idea if that's going to be required by
you?”
Do you see that one?
A. I do.
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Q. I mean, by this point you can already tell that the
bank is now aware—is aware on April 3rd that Jill
Sport is communicating with the bank on behalf of
borrowers, correct?
MR. BATES: Object to the form of the question. I will
just leave it there per your prior request.
A. Yes. We would be aware that we're communicating
with an individual, a CPA.
(Ex. B at 117:13−118:4.) These were relevant, admissible answers. And it was not
“unlawful” or even hardball to ask this witness about these fairly obvious texts.
The examination continued through other relevant messages. As another
example:
Q. . . . Do these texts support that Ms. Sport was
helping put an application to the bank? Wouldn’t
this support that the bank knew Ms. Sport was
trying to make an application?
A. It would indicate that this Ms. Sport is, you know,
doing something in the process, you know,
submitting information it appears on behalf of the
customer.
(Ex. B at 122:11−20.) This question drew no objection from Synovus. There was no
complaint from the witness about not understanding or being able to see the
message.
Synovus did not begin objecting to this set of text messages until the eleventh
page of screenshots. Id. at 124:19−125:9. Sport & Wheat asserted that it would
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continue asking questions. Id. at 125:10−19. This was a dispute and both sides did
not agree, but both sides were respectful about it.
The deposition continued, for about fifteen minutes, with no objection or
complaint from Synovus. Id. at 127:3−129:6.
Synovus sought a break for lunch, which was agreed to. Id. at 129:11−15.
Synovus again complained that it was entitled to see all the text messages that had
not yet been used with the witness. Id. at 130:5−7. Sport & Wheat agreed to produce
the text messages one at a time, so that Synovus’s lawyer could preview them, but
did not agree to providing the entire set. Id. at 130:8−15.
After the break, questioning continued with the eighteenth screenshot. Id. at
130:22−132:6 (viewing Ex. E at 18). These questions concerned the core question in
this entire action: whether Synovus would pay Sport & Wheat for its time and what
Synovus’s policy may have been. These questions didn’t draw objections. And they
were extremely relevant. E.g., “Q. Should [the banker] have been aware of the
policy on this date? A. Yes, she should have.” Id. at 132:3−6. Moreover, many of the
questions had nothing to do with the document itself.
It is true that some of the screenshots had grey boxes on them. E.g., Ex. E at
11−18. These redactions were obvious, not concealed, and Sport & Wheat
explained the purpose was to “make it clearer to the witness what it is we are and
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aren’t talking about.” Id. at 132:7−17. In fact, the redacted texts do not concern this
action, and some of them are there to preserve the medical privacy of third parties.
The point of these boxes was to focus the witness on relevant texts—just the same
way a party might show a witness one e-mail out of a hundred. No rule requires a
party introducing a text message to also tender every text the two texters have ever
exchanged.
Just fifteen minutes after the thirty-minute lunch break, Synovus demanded
another break:
Q. Mr. Adams, are you familiar with Larry Strain?
A. Yes.
MR. PRATHER: We need to take a break real quick.
MR. CASH: No. We just did take a break.
MR. PRATHER: Mr. Cash, we’re taking a break. Okay?
We’re taking a break.
MR. CASH: No.
MR. PRATHER: Mr. Cash, we’re taking a break.
MR. CASH: You take a break, that’s on you. We’re not
taking breaks. I want to continue on.
MR. BATES: Go ahead. He won’t answer until you get
back.
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MR. CASH: I’m going on with the questions. I am the
officer taking the deposition. You’re not taking a break.
We just took a break.
Id. at 133:16−134:12.
Synovus then complained of an unexplained “technical issue,” id. at
134:13−16, and its lawyers stated that one of them needed to take a phone call:
MR. PRATHER: Mr. Ramsey has a call that he has to
take. I’m waiting for him to get off his call.
MR. CASH: I am taking the deposition. I’m sorry that
your lawyer can’t sit there and do the deposition. After
you guys lectured me about professional courtesy, this is
highly irregular. You just had your break. Take your calls
on your own time. You all agreed to be here.
COURT REPORTER: Mr. Cash, you’re the only one
here.
Id. at 136:8−20.
After returning from the break, Synovus cited Rule 30(d) and stated its
intention to move to terminate the deposition. Id. at 137:2−14. Sport & Wheat
reminded Synovus that under Rule 30(c)(2), when the conduct of deposition is
objectionable, the objection is noted, but the examination still proceeds. Id. at
137:15−138:14.
Sport & Wheat also pointed out that it had other questions to ask that did not
related to the disputed text messages: “You’re cutting off questions that I had that
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did not relate to exhibits. I am not finished with my exam. The witness has not
appeared on all the topics.” Id. at 138:2−6.
Synovus walked out, leaving an empty conference room. (Ex. F (photo).)
III. Argument.
A. This motion was prematurely filed and is also moot.
This motion was premature and should not have been filed. Synovus certified
in its Loc. R. 7.1(B) certification that it conferred with Sport & Wheat “during the
deposition.” Synovus does not say that it actually conferred with Sport & Wheat
before filing the motion, and it didn’t.
This violated Loc. Rule 7.1(B), and it is troubling because Sport & Wheat
gave Synovus an offramp to avoid this entire motion. In an e-mail sent the day after
the deposition, Sport & Wheat told Synovus:
“On further reflection, we have decided not to press to
complete the 30(b)(6) deposition next week. We intend to
pick up the matter at a later date—after Synovus makes a
full and fair production of interrogatory responses,
documents, and RFAs—and we will consider if we need
more deposition time then. If we do, we’ll work it out
with you, and if we can’t, we’ll file a motion to compel
and we’ll put the facts of yesterday before the court.”
(Mot. Ex. 6 at 3.) Sport & Wheat did this with the direct intention of avoiding the
motion now at bar. It was an attempt to lay down the sword and just get on with the
case. So nothing compelled the filing of this motion.
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Loc. Rule 7.1(B), and Fed. R. Civ. P. 37, are a safety valve to avoid heated
disputes exactly like this one. Wright & Miller says, “This ‘stop-and-think’
occasion should afford both sides an opportunity to reflect on whether they should
moderate their positions. Put differently, this is an opportunity for them to consider
whether the initial position they have taken is really substantially justified.” 8B Fed.
Prac. & Proc. Civ. § 2288 (3d ed.). This didn’t happen, despite Sport & Wheat’s
olive branch.
For these reasons, even if the Court grants Synovus’s motion, it should not
award attorney fees to Synovus—the requisite Rule 37(a) conference did not occur.
This motion is also moot, because Synovus already got what it wants—
Synovus unilaterally terminated this deposition, by walking out of it. Given that
resumption of this deposition may never occur—Sport & Wheat has not decided if
it will seek to conclude this deposition—there is no ripe dispute.
However, Synovus did file this motion. Accordingly, the Court’s Order
regarding the award of attorney fees on discovery motions should apply. (ECF No.
16, Order at 10−11.) The Court should award Sport & Wheat’s attorney fees in
connection with having to respond to this motion—which was only occasioned by
Synovus’s deposition misconduct.
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Synovus hates this case and chastises this case—and plaintiff’s counsel—in
very personal terms. Synovus made the decision to unilaterally walk out of this
deposition, possibly because it did not like the testimony its witness gave. Sport &
Wheat gave Synovus the chance to reconsider filing this motion and asked it to
come back to the table to work together. Specifically, Sport & Wheat wrote, “On a
personal note, I want to say that nobody likes scorched-earth tactics; they are
exhausting, and they violate the liberal spirit of the Rules. We are willing to push
the reset button with your team if you want to start over.” (Mot. Ex. 6 at 4.)
Synovus rejected that too—saying “we decline to engage with you further
about this subject.” (Mot. Ex. 6 at 2.) That was contumacious.2
B. This deposition was not taken in violation of Rule 30.
To file a motion to terminate a deposition, the party has to show that the
deposition was “conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A). This
deposition simply did not reach that standard. The only part of this rule Synovus
relies on is “bad faith.” (Mot. at 15.)
“Bad faith” means questions that do not advance the objectives of the case,
but are asked for some illegitimate purpose. E.g., Redwood v. Dobson, 476 F.3d 462,
2
And these are just the communications Synovus itself chose to file with the Court.
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467−68 (7th Cir. 2007) (asking witness about his mental health and if he was
“involved in any type of homosexual clique” would have met the standard of Rule
30(d)(3)).
Nothing close to that occurred in this deposition. There is not one word in
Synovus’s 20-page motion that says Sport & Wheat asked questions that were not
germane to the action, or harangued the witness, or insulted him.
Irrelevant and personal questions, such as asking about a deponent’s
personal financial affairs and salary, when those matters are irrelevant to the action,
is the type of questioning that qualifies for an order under Rule 30(d). E.g., Dent v.
U.S. Tennis Assoc., No. CV-08-1533, 2010 WL 1286391 (E.D.N.Y. Mar. 30, 2010).
Again, Synovus does not argue that anything like this happened. Synovus does not
argue that the questions asked were irrelevant.
Compare this deposition with Rottlund Co. v. Pinnacle Corp., 222 F.R.D. 362,
381 (D. Minn. 2004), where the court wrote, “Mr. Carmichael, an opposing
attorney taking Mr. Jorgenson’s deposition, wanted to be the first to tell Mr.
Jorgenson, who is about 25 years old, drives 50 some miles one way to work, and
has three daughters, that he was going to lose his job.” Id. It continued, “This
conduct is the epitome of bad faith harassment. The line of questioning had nothing
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to do with the lawsuit and was intended for no other reason than to inflict emotional
angst.” Id.
That is what bad faith looks like. Sport & Wheat’s questions regarding
communications between the plaintiff and the defendant—which were absolutely
relevant topics, disclosed on the deposition notice, Ex. A—were the epitome of fair
questions.
Instead, it was Synovus’s conduct that was in bad faith and frustrated the
purpose of discovery. By walking out entirely, its “conduct clearly impeded and
delayed the . . . deposition of witnesses and interfered with the search for the truth,
which, after all, is the ultimate goal of both the discovery and trial process.” United
States v. Kattar, 191 F.R.D. 33, 38–39 (D.N.H. 1999).
Synovus did not appear to like the answers its witness was giving. The
witness was giving useful concessions regarding the value of Sport & Wheat’s
services to Synovus. E.g., Ex. E at 120:19−121:2 (“there would be some indication
that this individual was, you know, in some form helping or asking questions”). But
that is not a reason to employ Rule 30(d). “Rule 30(d)[(3)] is not a backdoor
mechanism for counsel to instruct witnesses not to answer certain questions. Nor is
it designed in any way to preclude a witness from answering questions based on
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relevance.” Buckley Towers Condo., Inc. v. QBE Ins. Corp., No. 07-22988-CIV, 2008
WL 2645680, at *8 (S.D. Fla. Jun. 26, 2008).
C. Synovus was not ambushed by the seven screenshots it objected
to; its counsel were aware that they did not have any documents
from Sport & Wheat before they arrived at the deposition.
Synovus’s only objection is that its lawyers did not get copies of the text
messages that were used in examining its witness ahead of time. Its own motion
shows exactly why this objection is baseless—it knew what it was getting into.
Very early on, Synovus knew it didn’t have any of Sport & Wheat’s
documents. Synovus itself wrote on May 31 that it is “exceedingly odd for a
plaintiff’s lawyer to send a 30(b)(6) notice before he has seen any documents.”
(Mot. at 9; Ex. G at 2.) On June 1, Synovus again complained of “the oddity of
proceeding with a 30(b)(6) deposition” prior to document discovery. (Mot. at 9.)
Synovus also flagged the issue of possibly presenting an unprepared witness: “A 30
(b) (6) notice imposes significant legal requirements. Our client is not going to show
up unprepared to meet those requirements.” (Ex. G at 1.)
Whether Sport & Wheat’s discovery sequencing was “odd” is really not for
Synovus to comment on (although it is another example of how Synovus needlessly
impugns Sport & Wheat, its lawyers, and their decisions). It is long settled that
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there is no set order for discovery devices to be used. Purofied Down Prods. Corp. v.
Royal Down Prods., Inc., 87 F.R.D. 685, 691 (W.D. Mich. 1980).
The critical point here is that Synovus knew it did not have any document
discovery in hand from Sport & Wheat. Nevertheless, Synovus offered a deposition
date of June 18, well in advance of Sport & Wheat’s July 9 discovery response
deadline.
And it’s true—Sport & Wheat offered to identify the anonymous borrowers
in its complaint. And Sport & Wheat continues to be willing to do that. However,
nowhere did Sport & Wheat promise to do so prior to the deposition of Synovus.
Synovus claims that its requests for this information on June 2 and June 15,
which were not responded to, constitute some kind of malice on Sport & Wheat’s
part. If Synovus really felt that the lack of this information was critical, Synovus
could have picked up the phone and asked to put the deposition off. Synovus could
also have filed a motion for protective order. The fact that Synovus did neither of
these things is telling: Synovus made its choice.
Moreover, what is Synovus now telling the Court? That the truth changes
depending on which party goes first? That its witness would testify differently if he
had had these text messages? Synovus did not point to a single question whose
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answer would have been different had its witness read the text messages an hour, or
a month, in advance.
Synovus’s deponent was its chief commercial banking officer. (Ex. B, Adams
Dep. 19:2−5.) It’s not the case that he was confused by some scattered text
messages. This high-ranking officer was perfectly capable of explaining his
uncertainty and delimiting his own answers. E.g., id. at 119:10−24 (“it’s hard to
know what would have been inferred”), id. at 121:3−11 (“I can’t infer what from this
exchange . . . which I’m seeing for the first time”).
Finally, Synovus complains about the “redactions,” and repeatedly
insinuates that these were deceptive and improper. It does not point to one
redaction that changed the meaning of the texts that were shown. These were not
redactions of relevant material; they were grey boxes to direct the witness to the
relevant areas in question. Some of them concealed matters, including medical
histories, that would be sensitive or embarrassing to the bank employee and third
persons, which Synovus knows. These matters were covered up out of a sense of
decency, not trickery. Sport & Wheat has offered to put all of these in front of the
Court for its review. Sport & Wheat still does not understand Synovus’s repeated
refusal to have the Court see the evidence on this motion—particularly where it has
21
put an attorney’s character and professionalism at stake. That is a lot more
important than the outcome of any one case.
D. Synovus did not properly investigate its own files, and if it had, it
would have uncovered the information it complains it didn’t have.
Synovus complains in its motion that there was “no way” to investigate or
consult with Synovus employees regarding any borrower connected with Sport &
Wheat. (Mot. at 10−11.) But that’s not true. The complaint was filed on April 26.
Synovus had almost two months before the deposition to do its due diligence using
the information given there. For example:
Sport & Wheat is in Pace, and there is exactly one Synovus branch in
Pace. Did Synovus really not contact anyone working at its Pace office
to discuss this suit?
Sport & Wheat itself is a Synovus customer and banks at this branch.3
Did no one at Synovus check whether plaintiff and defendant had any
other relationship, or attempt to locate relevant witnesses?
Synovus’s witness said it had issued a litigation hold. Id. at 67:18−21.
When this hold was communicated to the bank’s employees, did
Synovus really not bother to identify the people in possession of
relevant information? How does a hold like that work?
Further, Sport & Wheat put the exact dollar amount of its client’s loan
in the complaint, the dates on which it was funded, stated the nature of
the business, and even used an initial matching the company’s name.
Was there really no way for Synovus to identify the nine-person
surgical group in Pensacola beginning with the letter C that received a
$163,303 loan on or about April 21? (ECF No. 1, Compl. ¶¶ 63, 71.)
3
It is leaving.
22
The scant text messages used with Synovus’s witness are documents in the
direct possession, custody, or control of Synovus. While Synovus misleadingly tells
the Court that texting is against company policy, ECF No. 72 at 3, n.1, it plainly
happens at this company—just like it happens all over America. Synovus presented
this witness on the date and at the location of its choosing. Synovus knew that the
topics included communications between the bank and Sport & Wheat. If Synovus
did not prepare its witness, that was a violation of Rule 30(b)(6) on Synovus’s part.
These were bank employees’ communications, and Synovus has control over
them. Indeed, counsel is informed that Synovus interviewed Ms. Weaver and the
second bank employee discussed in the deposition the very day of the deposition.
Presumably, Synovus now has gathered the relevant communications—which
almost assuredly will include more than a handful of texts. Sport & Wheat does not
know what communications the bank had internally. That’s what the deposition
was about. Synovus should have prepared itself before presenting its witness on the
date of its choosing.
23
E. Even if Synovus’s lawyers had seen all pages of the proffered
exhibits at the beginning of the deposition, they would not have
been allowed to discuss them with their witness.
Synovus also complained that its lawyers were not allowed to see Sport &
Wheat’s texts to put them in “context.” (Ex. B at 133:3−7.) This did not mean that
the deposition was taken in bad faith or in violation of Rule 30.
Nothing gives a party’s attorneys the right to see all of the potential exhibits
that could be used with a witness. The deposition had started. As even the witness
acknowledged, there is no right to communicate with the attorneys about the
subject of the deposition. Id.at 7:24−8:5. Nobody objected to this instruction.
That’s because it’s the law.
“A deposition is meant to be a question-and-answer conversation between
the deposing lawyer and the witness. There is no proper need for the witness’s own
lawyer to act as an intermediary, interpreting questions, deciding which questions
the witness should answer, and helping the witness to formulate answers.” Hall v.
Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993). Once the deposition begins,
the “witness is on his or her own.” Id.
So what difference would it have made if the attorneys were able to see all of
the text messages in the exhibit? They were forbidden from discussing them with
the witness. “If the witness does not understand the question, or needs some
24
language further defined or some documents further explained, the witness can ask
the deposing lawyer to clarify or further explain the question.” Id. at 528−29. That
did not happen here because the text messages are pretty clear; Synovus just didn’t
like what they showed.
Even though there is no law requiring it, Sport & Wheat did offer to send the
messages one at a time to Synovus. Id. at 130:8−15. Sport & Wheat also offered to
allow Synovus’s lawyers to read documents on the same screen, before the witness
would—which they agreed to do. Id. at 42:16−43:9.
Synovus’s real objection is not to the conduct of this particular deposition, or
any specific Rule 30 violation (it certainly can’t find a provision in Rule 30 that
required these texts to be sent over days in advance). Synovus’s real objection is
that it did not have some documents that it knew existed. But again, Synovus knew
that going in.
F. Regrettably, Synovus should be sanctioned for its willful
misconduct and for filing this baseless motion.
Synovus ensured that it would get its own way by unilaterally walking out of
this deposition. Synovus wrongly obstructed Sport & Wheat’s right to have
truthful, unvarnished answers to its questions. It should be sanctioned for violating
Rule 30(c) by walking out, and it should pay for Sport & Wheat’s time in defending
this motion.
25
Synovus walked out with further questions pending. Sport & Wheat’s
counsel stated: “I want it to be clear. There are questions I would have asked that
did not involve these documents that you think are in dispute.” Id. at 138:10−13.
Even if it was appropriate to argue over the text messages, Synovus’s witness should
have stayed in the chair, and the deposition should have proceeded under Rule
30(c): an objection “must be noted on the record, but the examination still
proceeds; the testimony is taken subject to any objection.” There were other topics
on which the witness could have and should have testified.
Despite all that, after it was over, Sport & Wheat extended a friendly hand,
offered to “push the reset button,” and encouraged Synovus to avoid this motion.
(Mot. Ex. 6 at 4.) Synovus curtly responded, “we decline to engage with you
further about this subject.” Id. at 2.
Synovus’s bad behavior should not be rewarded, or it will continue.
In this motion, Synovus’s lawyers, in personal terms, have gone out of their
way to say that “none of [them] have ever experienced anything like” Sport &
Wheat’s counsel’s “misconduct.” (Mot. at 12.) The undersigned—a former
judicial law clerk for Chief Judge Rodgers, a practicing lawyer for eleven years with
no allegations of unprofessionalism, and a partner in Levin Papantonio before
moving to Illinois—can state that this is the first time he has ever seen any witness
26
walk out of any deposition. And he can state this is the only case he’s handled
where one party’s extreme animosity has overwhelmed the case from the start.
This is not normal litigation practice. The communications that have been directed
at plaintiff’s counsel—including Sport & Wheat lawyers other than the
undersigned, even plaintiff lawyers in other PPP cases against Synovus—have not
met the professional standard.
Every lawyer is guilty of some degree of hubris and every honest lawyer can
look in the mirror and see the flaws. Plaintiff’s counsel is not immune to that.
However, the conduct on the other side of this case has been fairly disappointing
and egregious.
Synovus injects irrelevant matter into every filing. For example, in this
motion that is ostensibly about a Rule 30(b)(6) deposition, there was no reason to
bring up anything to do with the Judicial Panel on Multidistrict Litigation. (Mot. at
6.) In so doing, Synovus did not even truthfully describe Sport & Wheat’s brief to
the Panel. (Incidentally, Sport & Wheat’s attorneys congratulated Synovus on their
well-written brief to the Panel—and would heartily do so again. Synovus responded
with sarcasm. Ex. H.) There was also no need, in this motion, to bemoan the
supposedly low value of the claim, Mot. at 1, 5−6, no need to accuse Sport & Wheat
of “rushing” to file its complaint, id. at 6, no need to accuse Sport & Wheat’s
27
counsel of angling for “a seat on an MDL committee,” id., no need to argue
whether there was standing to file this case, id. at 7, no need to claim that the
amended complaint corrected “multiple blatant pleading deficiencies,” id. at 8, no
need to complain that the deposition was “sprung” on Synovus, id. at 8−9, and so
on.4 There certainly was no need to baselessly accuse counsel of “insist[ing] on
taking the deposition by Zoom so he would not be present with Synovus counsel,”
id. at 12.
Synovus’s irrelevant, negative allegations are in every filing. (“It appears
S&W rushed to file suit to position itself among other plaintiffs that have filed
similar putative class action complaints . . . .” Mot. to Dismiss, ECF No. 46 at 5.
This wasn’t true; Sport & Wheat filed the first case in the Nation.) Synovus
insinuates that Sport & Wheat’s lawyers are lying to the Court, even in the 26(f )
report. (“Plaintiff has attempted to make representations regarding statements
made by other parties during the conference despite the fact that no court reporter
was present and no transcript exists.” Rule 26(f ) Report, ECF No. 61 at 17, n.4.
Sport & Wheat stands by what it said.) It inserts caustic remarks in almost every e-
4
Sport & Wheat does not want to have to respond to all this cruft every time either.
But the alternative is to let it all go uncorrected. The Court should order Synovus to
stick to the point in its future filings.
28
mail between counsel. And it’s not just a personality problem between one lawyer
and another lawyer. The comments come from across the Synovus team.
Synovus spends much of its motion complaining that Sport & Wheat did not
identify one single borrower, Borrower C, named in the complaint and the amended
complaint, which would supposedly have changed everything in this deposition.
Disclosing borrowers’ identities could implicate the Florida accountant-client
privilege. Fla. Stat. § 90.5055. When on June 30, a different Sport & Wheat lawyer
asked to have a call with Synovus about a protective order that would permit
disclosure of all the borrowers’ identities, Synovus refused! (Ex. I.) Ironically,
Synovus then accused Sport & Wheat of trying to make this litigation as expensive
as possible. Id. at 1.
Synovus has been suspicious and hostile of this action from the beginning. In
fact, on the very first call between the plaintiff’s lawyers and the defense team,
Synovus asked permission to tape-record the call. This is unheard of.
Synovus’s aggressive and sometimes nasty tone is not even limited to the
attorneys in this case. Synovus is a defendant in a similar PPP case in the Northern
District of Georgia and is represented by one of the same Georgia lawyers that
represents it here. That lawyer uses the same sarcastic, derisive language as well.
(Ex. J (threatening Rule 11 sanctions; writing: “Ordinarily one would expect the
29
requested information to be disclosed in the Complaint. It is very basic
information.”).)
Synovus’s extremely hostile and aggressive posture has no place in this
District. It can stake its position and still remain cordial, even friendly, to its
opponents. Other parties are doing that. Synovus’s decision to storm out of a
deposition, rather than following Rule 30(c) and simply noting its objection on a
question-by-question basis, was egregious. But it was just part of a pattern of
scorched-earth tactics it has been using this entire action. It is time to turn down
the heat and tone down the rhetoric. This is civil litigation.
V. Remedy sought.
An appropriate remedy may be difficult to craft because the Court has stayed
discovery. However, Sport & Wheat seeks the following:
Its attorney fees for the time spent arguing over questions at the
deposition; writing this brief; and arguing against this motion at the
hearing set for July 9.
An order that Synovus violated Rule 30(c) by leaving rather than
answering questions under objection.
An order that if the Court lifts the stay on discovery, Synovus must
return to conclude this Rule 30(b)(6) deposition, at Sport &
Wheat’s election, without the need for further motion practice.
The parties should be ordered to reach a mutually agreeable date
without Court intervention.
30
Sport & Wheat has given thought to whether seeking this relief requires
Sport & Wheat to file a motion to compel of its own. Sport & Wheat decided
against doing so, because both sides have fully ventilated the dispute, and because
Rule 37’s award of fees was already implicated by Synovus’s filing this motion. If an
affirmative motion on Sport & Wheat’s part is necessary to secure relief, then Sport
& Wheat would appreciate the Court’s guidance.
VI. Conclusion
Synovus’s motion should be denied, and the Court should award the relief
sought by Sport & Wheat.
Dated: July 6, 2020 Respectfully submitted,
/s/ William F. Cash III
Virginia M. Buchanan
(Fla. Bar No. 793116)
Matthew D. Schultz (Fla. Bar No. 640328)
William F. Cash III (Fla. Bar No. 68443)
LEVIN, PAPANTONIO, THOMAS,
MITCHELL, RAFFERTY & PROCTOR,
P.A.
316 South Baylen Street, Suite 600
Pensacola, FL 32502
Phone: 850-435-7059
Email: bcash@levinlaw.com
31
/s/ John S. Wirt
John S. Wirt, Esq. (Fla. Bar No. 117640)
Pamela Cocalas Wirt, Esq. (Fla. Bar No.
109576)
WIRT & WIRT, P.A.
5 Calhoun Ave, Suite 306
Destin, FL 32541
Tel: 847-323-4082
Fax: 314-431-6920
jwirt@wirtlawfirm.com
Attorneys for the Plaintiff
CERTIFICATE OF WORD COUNT UNDER LOC. R. 7.1(F)
I certify that the core of this brief contains 6,843 words, including headers,
footnotes, and quotations.
/s/ William F. Cash III
32
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