EFTA01199966.pdf

Wdstlaw. Page I Not Reported in F.Supp.2d, 2005 WL 1533104 (W.D.Wash.) (Cite as: 2005 WL 1533104 (W.D.Wash.)) H Pacific Commercial Equipment, Inc., d/b/a/ Aero Only the Westlaw citation is currently available. Construction ("Aero" or "Defendant") was not aware of Mr. Borreson's prior conviction at the time of his application for employment. After-acquired evidence United States District Court, may limit damages, but it does not bar liability W.D. Washington. altogether. McKennon v. Nashville Banner Publ'g EQUAL EMPLOYMENT OPPORTUNITY Co., 513 U.S. 352, 362-63, 115 S.Ct. 879, 130 COMMISSION, Plaintiff, L.Ed.2d 852 (1995). There are material issues of fact and that preclude summary judgment. Quenton BORRESON, Plaintiff in Intervention. v. PACIFIC COMMERCIAL EQUIPMENT, INC., The Court DENIES the Defendant's Motion to d/b/a Aero Construction, Defendant. Compel Mr. Borreson to answer all questions in his deposition and for sanctions, docket no. 75. Fed.R.Civ.P. 30(d)(I) states that "a person may No. C04.940Z. instruct a deponent not to answer only when June 28, 2005. necessary to preserve a privilege...." What is privileged is defined by the Federal Rules of A Luis Lucero, Jr, Equal Employment Opportunity Evidence; these rules include the rule against self- Commission Seattle District Office, Seattle, WA, for incrimination. See Campbell v. Gerrans, 592 F.2d Plaintiff. 1054, 1056 (9th Cir.I 979). The Ninth Circuit has noted that there are clearly cases where the refusal to James Paul Murphy, Lybeck Murphy, Mercer Island, answer is permitted by the discovery rules under the WA, for Defendant. privileged matter exception. Id. at 1057. This is one of those cases. Mr. Murphy declared during the Stephen A. Teller, Seattle, WA, for Intervenor. deposition that he intended to ask questions about the ongoing commission of a felony. Murphy Decl., Ex. ORDER D (Borreson Dep. at 207:22.208:3). Facing such ZILLY, J. questioning, Mr. Borreson was entitled to invoke his *1 This matter comes before the Court on the privilege against self-incrimination. Defendant's Motion for Summary Judgment, to Compel and for Sanctions, and for Direction from the The Plaintiffs move the Court to award sanctions Court, docket no. 75, as well as the Plaintiffs' against Mr. Murphy for his conduct during Mr. Motions to Strike and Motion for Sanctions, docket Borreson's deposition. Plaintiffs' Response, docket no. 87. no. 87, at 20-23. When a party has acted vexatiously or in bad faith, the Court may sanction that party in The Court DENIES the Defendant's Motion for the form of attorneys' fees. Primus Automotive Summary Judgment, docket no. 75. The Defendant's Financial Services, Inc. v Batarse, 115 F.3d 644, argument that Mr. Borreson was not available for 648 (9th Cir.1997). Mr. Murphy must have notice work due to his status as an unregistered convicted and an opportunity to be heard before the Court may sex offender fails. It is undisputed that Defendant impose sanctions. Law v. Ford Motor Co. 399 F.3d .O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA01199966  Page 2 Not Reported in F.Supp.2d, 2005 WL 1533104 (W.D.Wash.) (Cite as: 2005 WL 1533104 (W.D.Wash.)) 1101, 1110-11 (9th Cir.2005). The Court has no. 75. Plaintiff Quenton Borreson and Plaintiff reviewed the transcript of the deposition at issue and EEOC shall submit to the Court within fifteen (15) concludes that Mr. Murphy's continued questioning days of the date of this Order a declaration setting of Mr. Borreson after he had invoked his Fifth forth their attorneys' fees and costs. Amendment privilege was calculated to harass and embarrass Mr. Borreson. Mr. Borreson's counsel The Court further ORDERS Mr. Murphy to earn requested that Mr. Murphy stop questioning Mr. ten (10) Continuing Legal Education Ethics credits Borreson on the subject of his prior conviction and within twelve (12) months of the date of this Order any potential ongoing felony, yet Mr. Murphy and to certify to the Court within 12 (twelve) months doggedly pursued this improper line of questioning. the completion of this requirement. See Murphy Decl., docket no. 76, Ex. D (Borreson Dep. at 206:15-230:19). As it was clear that Mr. The Court STRIKES as MOOT the Defendant's Borreson would refuse to answer any questions on Motion for Direction from the Court. It is undisputed this topic, Mr. Murphy should have moved to a new that Mr. Borreson has now registered with line of questioning. Mr. Murphy also impliedly Snohomish County. accused Mr. Borreson's counsel of assisting in the commission of a felony by participating in this case As the Court DENIES the Defendant's motion and offered his personal opinions on Mr. Borreson's for summary judgment, docket no. 75, the Court criminal history. Id. (Borreson Dep. at 209:1-3, STRIKES as MOOT the Plaintiffs' Motions to Strike, 219:18-20). By aggressively pressing Mr. Borreson docket no. 87. to answer questions on a subject on which he had invoked his Fifth Amendment privilege not to answer, Mr. Murphy acted vexatiously and in bad IT IS SO ORDERED. faith. See Chambers v. NASCO, 501 U.S. 32, 45.46, ill S.Ct. 2123, 115 L.Ed.2d 27 (1991). The W.D.Wash.,2005. Plaintiffs moved for sanctions in their Response E.E.O.C. v. Pacific Commercial Equipment, Inc. brief, docket no. 87, which detailed Mr. Murphy's Not Reported in F.Supp.2d, 2005 WL 1533104 potentially sanctionable conduct. The Plaintiffs' (W.D.Wash.) motion gave Mr. Murphy notice that the Court might consider sanctions, including sanctions based on a END OF DOCUMENT breach of ethics. Mr. Murphy had an opportunity to be heard on the issue of sanctions in his Reply brief, but chose not to address the issue. See Defendant's Reply, docket no. I I. *2 Under its inherent authority, the Court GRANTS the Plaintiffs' motion for sanctions against Mr. Murphy and awards both Plaintiff EEOC and Plaintiff Borreson sanctions in the amount of their attorneys' fees and costs for preparation and attendance at Mr. Borreson's April 28, 2005 deposition and for preparing a response to the Defendant's Motion for Summary Judgment, docket O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA01199967