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Ignorance is Not Always Bliss – Unprepared Deposition Witness Results in Sanctions (NY)

December 14, 2016

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The Southern District recently sanctioned perfume company Excell Brands, for producing a witness who was unable to answer questions at deposition in <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/12/Coty-v.-Excell-Brands-LLC.pdf">Coty v. Excell Brands, LLC</a>.</em>  The Court required Excell to pay attorney’s fees to plaintiffs, Coty, Calvin Klein and Vera Wang after Defendant’s witness proved to be “patently unprepared” at his deposition.
<em>Coty</em> arose in September 2015, from a trademark infringement suit in which fragrance brands, Calvin Klien and Vera Wang, brought suit against Excell for selling low-grade “knock offs” of their fragrances, using similar name, scent and packaging as plaintiffs.
Plaintiffs served Excell with a deposition notice seeking testimony about the ingredients and chemical compositions of Excell’s fragrances. At Exell’s first deposition, Excell produced a retail salesman who was unable to answer questions on the topic.
At the subsequent deposition, Excell produced a board member who when asked what he had done to prepare for deposition, stated “not much.”  When asked about the ingredients of Excell’s perfumes, the board member answered nearly 40 of plaintiffs' questions with a variation of “I don’t know.”
Plaintiffs successfully moved for sanctions pursuant to Rule 37 of the Federal Civil Procedure Rules.  Judge Furman held that “given that Pfau [board member] lacked a background in chemistry, had no involvement in the day-to-day operations of Excell and is not even an Excell employee, the need for him to gather additional information prior to his deposition was manifest.”
The Judge indicated the board member should have, at a minimum, spoken with the company president who was indicated at the first deposition as having knowledge. The judge found his lack of preparation “egregious and worthy of sanctions.”  Not only did the Judge impose sanctions but also prohibited Excell from introducing any evidence at trial on the ingredients and chemical compositions of the scent of each fragrance.
The Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition but of also sufficiently preparing that witness for the deposition, lest that party be precluded from relying upon such information at trial. Thanks to Patrick Burns for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> for any questions.

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