Horton v. Maersk Line, Ltd.
294 F.R.D. 690
S.D. Ga.2013Background
- John Horton (longshoreman) sued Maersk (removed to federal court) after being injured by a falling container twist-lock; Horton also previously sued Georgia Ports Authority (GPA) in state court.
- Christopher Morris, an eyewitness longshoreman, gave a contemporaneous signed typed statement attributing fault to GPA; at a later GPA deposition Morris testified Horton was within three containers and appeared to fault Horton, which undermined Horton’s claims against Maersk.
- At that GPA deposition plaintiffs’ lead counsel Brent Savage repeatedly berated, threatened (including references to perjury/prosecution), and otherwise bullied Morris; Savage later presented a typed exhibit purporting to reflect Morris’s recantation though Morris did not sign Savage’s handwriting.
- Maersk moved under Fed. R. Civ. P. 26(c) seeking (1) protection to prevent Savage from repeating abusive deposition tactics at Morris’s re-deposition in this case, and (2) an order barring Plaintiffs from using the prior (GPA) Morris deposition in this case so plaintiffs cannot benefit from Savage’s alleged misconduct.
- Horton opposed, arguing Morris’s state-court testimony contained false or inconsistent statements favorable to Maersk and that Maersk’s motion was retaliatory; Horton also filed a separate discovery-abuse motion alleging Maersk delayed producing certain investigator emails and notes.
- The court found Savage’s conduct in the prior deposition crossed the line, granted Maersk’s protective order (barred use of the prior deposition), required a videotaped re-deposition with limits on counsel’s conduct, and denied Horton’s discovery-abuse and related dismissal motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should impose a protective order barring use of prior GPA deposition and restraining counsel’s conduct at re-deposition | Horton: prior testimony was unreliable/recanted and is critical evidence; Maersk lacks standing to exclude a deposition from a different case; motion is retaliatory | Maersk: Savage’s abusive tactics frustrated fair examination and Maersk (a party here) may seek protection to prevent repetition and to avoid benefit from misconduct | Court granted protective order: barred use of prior GPA deposition and imposed strict conduct limits for re-deposition (videotaped; counsel pays videotape cost personally) |
| Whether Maersk has standing to seek relief based on a deposition taken in another (GPA) case | Horton: Maersk wasn’t a party to the GPA deposition and therefore cannot seek exclusion; GPA counsel did not object then | Maersk: Any party affected by abusive deposition conduct may seek protection under Rule 26; the prior deposition is intended for use here so relief is appropriate | Court: Maersk has standing; public policy and fairness allow a party to seek protective relief when misconduct in a prior deposition would be used here |
| Whether Savage’s prior deposition questioning justified sanctions or other relief | Horton: vigorous cross-examination was justified to expose inconsistencies; no affidavit from Morris complaining; Maersk delayed raising issue | Maersk: Savage repeatedly threatened, intimidated, and disrupted fair examination, violating Rule 30(d)(2) and professional conduct rules | Court: Savage’s conduct crossed the line into improper advocacy; Rule 30(d)(2) and professional norms support protective measures (sanctions not sought here, but conduct restrained) |
| Whether Horton’s discovery-abuse motion (privilege log / lost handwritten notes) had merit | Horton: Maersk waived privilege by late disclosure of privilege log and destroyed handwritten notes supporting Maersk’s defenses | Maersk: No waiver; work-product protects investigator notes; typed contemporaneous statement exists and was disclosed; Horton delayed raising issue until after Maersk filed its protective motion | Court: Denied Horton’s motion; no waiver found; investigator notes are work product and equivalent typed statement exists; Horton failed to show substantial need/undue hardship |
Key Cases Cited
- Berger v. United States, 295 U.S. 78 (1935) (advocates may "strike hard blows" but not "strike foul ones")
- United States v. Young, 470 U.S. 1 (1985) (the line between proper and improper advocacy can be difficult but must be enforced)
- Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007) (courts should maintain civility and professionalism; rules channel heated litigation)
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (courts have inherent power to assess sanctions for bad-faith litigation conduct)
- Coach, Inc. v. Hubert Keller, Inc., 911 F. Supp. 2d 1303 (S.D. Ga. 2012) (permitting merits consideration of motions affecting nonparties where conduct impacts the case)
- Langston Corp. v. Standard Register Co., 95 F.R.D. 386 (N.D. Ga. 1982) (redeposition and cost shifting may be ordered where prior deposition conduct deprived a party of fair examination)