Green v. GTE California, Inc.

Opinion

GILBERT, J.

If this case is an example, the term “civil procedure” is an oxymoron.

Plaintiff’s attorney appeals a discovery order that he pay $950 in sanctions. We echo the trial court’s comment when he reviewed the facts that gave rise to this order: “Unbelievable.” What is believeable, however, is that the order is not appealable. Nevertheless, we treat it as a writ petition. No court should have to review these facts again.

Facts

Plaintiff Green sued defendant GTE California, Inc. (GTE), for wrongful termination. GTE noticed plaintiffs deposition. After several continuances,

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the deposition was set for the afternoon of June 23,1993. Plaintiff’s attorney apparently had difficulty in other cases with the same defense counsel who would be representing GTE at the deposition. He therefore wished to control what he believed to be “intimidation tactics” practiced by his opposing counsel in the past. He points out that these tactics included facial expressions and gestures, which would not appear in a transcript. Nor would they appear on defendant’s reporter’s video equipment.

Plaintiffs attorney therefore brought his own video camera for the purpose of taping defense counsel during the deposition. By this method he apparently hoped to inhibit defense counsel’s “offending actions,” or at least record them.

Not surprisingly, defense counsel objected to being filmed. She told plaintiffs counsel that he had not given proper notice to use the video camera under Code of Civil Procedure section 2025. Plaintiffs counsel then agreed not to tape defense counsel, unless he perceived her to be using “intimidation tactics.”

The deposition lasted only a few hours on the first day. At the beginning of the second day of deposition, defense counsel gave plaintiff’s counsel three options. He could put a lens cap on the camera, turn it away from her, or remove it. Both counsel then engaged in what we will euphemistically call a verbal altercation, so lacking in civility, that we decline to repeat it here. Defense counsel refused to continue with the deposition and announced she would seek a protective order.