## Facts

- GMAC Bank administered residential mortgage loans and purchased residential mortgage loans from HTFC Corp. under a contract.
- GMAC sued HTFC alleging HTFC sold improperly underwritten, non–investment-quality loans and refused to repurchase them as required.
- HTFC counterclaimed, alleging GMAC mishandled loan administration and interfered with HTFC’s client relationships.
- GMAC noticed the deposition of HTFC’s CEO, Aaron Wider, as HTFC’s Rule 30(b)(6) designee; the deposition occurred on September 26, 2007 and continued on November 8, 2007.
- During the deposition sessions, Wider engaged in persistent hostile and profane conduct, refused to answer or gave evasive and nonresponsive answers, and otherwise obstructed questioning.
- Wider’s counsel, Joseph Ziccardi, made inadequate efforts to control the deposition, allegedly participated in or encouraged the misconduct, and issued improper instructions not to answer.
- GMAC moved to compel completion of the deposition and sought monetary sanctions against Wider and Ziccardi under the Federal Rules of Civil Procedure.
- After a hearing and supplemental submissions, the district court granted the motion to compel and imposed joint-and-several monetary sanctions on Wider and Ziccardi.

## Issues

1. Whether the deponent’s abusive, obstructive conduct “impede[d], delay[ed], or frustrate[d] the fair examination” so as to warrant sanctions under Federal Rule of Civil Procedure 30(d)(2).
2. Whether deponent’s counsel could be sanctioned personally for failing to control the witness and for participating in obstruction during the deposition.
3. Whether, and to what extent, fees and costs should be awarded to compensate for the disrupted deposition and related motion practice under Rules 30(d)(2) and 37(a)(5)(A).

## Decision

- The court granted GMAC’s motion to compel completion of the Rule 30(b)(6) deposition.
- The court found Wider’s deposition conduct outrageous and intentionally obstructive, rendering the examination effectively unusable.
- The court found Ziccardi complicit through inaction and improper conduct, including obstructive instructions and behavior that encouraged the witness.
- The court imposed monetary sanctions against Wider and Ziccardi, jointly and severally, requiring payment of GMAC’s reasonable expenses, including attorney’s fees, caused by the misconduct and the motion practice.
- In a later memorandum denying reconsideration, the court held that counsel had constitutionally sufficient notice and opportunity to be heard regarding the basis, form, and authority for sanctions.

## Legal Principles

- Under Federal Rule of Civil Procedure 30(d)(2), a court may impose sanctions, including reasonable expenses and attorney’s fees, on any person whose conduct impedes, delays, or frustrates the fair examination of a deponent.
- When a motion to compel is granted, Federal Rule of Civil Procedure 37(a)(5)(A) generally authorizes shifting reasonable expenses caused by the discovery failure unless an award would be unjust.
- Counsel has a duty, as an officer of the court, to ensure a client’s deposition is conducted with basic civility and to avoid tactics that obstruct legitimate questioning.
- Courts may rely on deposition transcripts to assess obstruction and may sanction both a witness and counsel when misconduct makes discovery ineffective.
- Due process for sanctions requires notice of the reasons for sanctions, the contemplated form of sanctions, and the legal authority, plus an opportunity to present a meaningful defense.

## Conclusion

The court compelled further deposition testimony and ordered joint-and-several fee-and-cost sanctions against a corporate designee and his attorney for sustained, abusive obstruction that frustrated deposition questioning, applying Rules 30(d)(2) and 37(a)(5)(A) and later confirming that the sanctions process provided adequate notice and an opportunity to be heard.


GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008)