HAASE, RICHARD A vs. ABRAHAM WATKINS NICHOLS SORRELS AGOSTO AND FRIEND
MAR 23, 2011 | REPUBLISHED BY LIT: AUG 20, 2023
PLAINTIFF’S MOTION FOR SANCTIONS AGAINST RANDALL SORRELS FOR LYING DURING DEPOSITION, WALKING OUT AND DISCOVERY ABUSE
TO THE HONORABLE COURT:
COMES NOW, Richard A. Haase, Plaintiff, and files this Motion for Sanctions Against Randall Sorrels for Lying During Deposition, Walking Out and Discovery Abuse, or in the alternative, Motion to Compel Randall Sorrels to Complete Deposition under the Court’s Direct Supervision and would show the Court as follows:
This suit is about Randy Sorrels’ (“Sorrels”) malpractice in an underlying case in which Sorrels engaged in unethical conduct related to discovery and how he hid certain responsive documents. It is clear that Sorrels has a practice of discovery abuse that violates the ethical standards as well as the Rules of Civil Procedure. See deposition video excerpt at https://youtu.be/rCDNg3aaBEU.
I. Factual Background
This case was filed in 2011. Abraham, Watkins, Nichols, Sorrels, Agosto and Friend, LLP (hereinafter “Sorrels Firm”) and Randall Sorrels, individually, (collectively referred to as “Sorrels”) moved for summary judgment shortly after the case was filed but before any discovery could be conducted. The Court of Appeals sent the case back with a partial remand. See Texas Lawyer article:
The undersigned was not counsel at the time as Plaintiff pursued his case pro se. Taking a page from Plaintiff, a non-lawyer, Sorrels has acted in his own defense pro se.
On May 16, 2014, Plaintiff’s counsel received notice indicating the Court had signed an “Order for Interlocutory Summary Judgment” as to Abraham Watkins and Nichols but it should not have included Sorrels.
Sorrels even stood before the Court and conceded that his summary judgment evidence was defective and did not support a complete summary judgment.
Plaintiff Richard Haase, a non-lawyer appealed pro se and obtained a reversal and remand from the Court of Appeals.
Upon receipt of mandate from the Court of Appeals, the Court contacted the undersigned and Mr. Sorrels to discuss getting this case to trial since it was now seven years old. On October 2, 2017, at 2:30 P.M., the undersigned explained to the Court that because summary judgment had been granted so quickly before, Plaintiff had never had the opportunity to depose Mr. Sorrels. Plaintiff’s counsel requested that the Court permit Plaintiff to take Mr. Sorrels deposition and an opportunity to have Mr. Sorrels produce documents from a previous request for production to which Sorrels had never produced any documents.
The Court stated Plaintiff could seek documents and depose Sorrels.
Sorrels did not request any depositions. Sorrels only concern was that the trial date not be set until after his election for State Bar president in April 2018. The Court accommodated Sorrels’ request and set the trial date accordingly and issued a new Docket Control Order.
Plaintiff requested Sorrels produce documents that were responsive to previous request for production of documents.
Sorrels never produced any documents and would not remove his previous frivolous objections.
Without waiting any longer, on January 8, 2018, Plaintiff requested that Sorrels provide dates for his deposition. Exhibit A.
On January 18, 2018, Sorrels agreed to February 6, 2018 for his deposition.
Sorrels requested the deposition of Plaintiff’s designated expert.
On January 24, 2018, Plaintiff noticed Sorrels deposition for February 6, 2018, the date he had provided. Exhibit B.
However, on January 26, 2018, Sorrels filed a motion to quash his deposition. Exhibit C.
Mr. Sorrels refused to provide acceptable dates for a deposition.
On the same day, Sorrels noticed the deposition of Plaintiff’s expert for February 20, 2018. Because Plaintiff’s expert needed Sorrels’ testimony, Plaintiff quashed the notice of depo of the expert.
Plaintiff put in the motion to quash the expert’s depo the following:
“Plaintiff has tried to work with Defendants on taking the deposition of Randy Sorrels but Defendants have yet to produce him. Mr. Pierce is an expert witness and would need to review the deposition of Sorrels prior to giving his opinion in a deposition.”
Seeking special treatment again, Sorrels wanted a continuance from the April 30, 2018 trial date because he was running for State Bar president. On February 2, 2018, the Court heard Sorrels request to continue the trial date.
Sorrels wanted to set the date during the school term because he knows that Plaintiff is a High School teacher and has to schedule time off. Plaintiff had already scheduled the time off for April 30, 2018 for the agreed upon setting from the previous October.
When dates were suggested for trial, again Sorrels wanted the trial date after he claims he would be presiding at the State Bar Convention in Houston as president.
Plaintiff agreed to a June 2018 setting for the trial and the Court set the trial date for June 25, 2018.
The Court then asked about mediation to which Sorrels replied he was not in agreement as to mediation.
Sorrels told the Court he wanted to depose Plaintiff’s expert.
However, Plaintiff’s counsel informed the Court that Sorrels had been refusing to appear for his deposition and that Sorrels’ deposition was critical to provide information to the expert to form his expert opinion.
The Court ordered Sorrels and the undersigned to go out in the hall and confer on a deposition date for Sorrels deposition and to report back to the Court with the date.
The Court instructed us not to leave until we had provided the Court with a date for Sorrels deposition.
The undersigned and Sorrels agreed to February 8, 2018 at 9:00 AM.
Sorrels then left, however, the undersigned went into the courtroom and informed the Court of the date because the Court was in a hearing. That very day, February 2, 2018, Plaintiff noticed Sorrels’ deposition for February 8, 2018 at 9:00 AM as agreed. Exhibit D.
Upon appearance at the deposition on February 8, 2018 just after 9:00 AM, Sorrels appeared in his own conference room and informed the undersigned that he had an event related to his State Bar race that he wanted to attend during the middle of the deposition and requested a “long lunch.”
The undersigned requested the time that Sorrels’ would be absent and he stated he would be out from 10:45 AM to around 1:30 – 2:00 PM.
Given that the Plaintiff had to take a day off from teaching, there was not much choice but to agree to the delay.
However, it soon became clear that Sorrels was not going to permit the deposition to be conducted that day. The deposition lasted only 57 minutes before Sorrels abruptly walked out of the deposition and indicated he was never going to return.
The deposition began with preliminary questions and Sorrels was asked whether he had any responsive documents to produce.Sorrels testified that he did not have any documents related to his previous representation of Haase at all. For several minutes, Sorrels testified under oath that he had not one e-mail and not one document to produce.
Sorrels was asked about the storage of client files and his practice of keeping documents related to anticipated lawsuits.
Sorrels testified he had no documents at all and that all of his documents had been lost due to Hurricane Ike in 2008.
However, it was apparent Sorrels was lying because in his previous summary judgment motion, Sorrels had attached his own engagement agreement which Sorrels was now testifying was destroyed by Ike.
Sorrels was obviously lying because he had also previously attached to his summary judgment motion testimony from sealed transcripts from the underlying matter. When Sorrels was pressed about documents, Sorrels became agitated.
Sorrels claimed he was being harassed and asked if there were any additional questions.
When the undersigned asked Sorrels to explain how he could testify he had absolutely no documents and yet he had attached documents to his summary judgment motion, Sorrels stated he was terminating the deposition and began to walk out.
The undersigned requested that Sorrels remain on the record and they call the Court.
Sorrels refused and simply walked out and never returned. To this day, Sorrels has never made attempt to resume his deposition.
Instead, showing incredible Chutzpah, Sorrels demanded the deposition of Plaintiff.
When Sorrels request was refused until he completes his deposition, Sorrels simply noticed the deposition of Plaintiff. Plaintiff of course quashed that deposition.
Sorrels pushing his State Bar president candidacy to the limit filed a motion to compel Plaintiff’s deposition and set it for a hearing without even informing the Court of the events that transpired of his walking out of his own deposition.
Plaintiff had been waiting on the transcript of Sorrels’ deposition.
Plaintiff’s counsel was also waiting on some communication from Sorrels to resolve the issue or to at least schedule a time to resume his deposition.
Apparently, when Sorrels stated on the record the deposition was over or concluded, he meant he was never re-appearing ever for his deposition. Instead, Sorrels has taken a very aggressive approach and simply demanded to depose the Plaintiff.
Sorrels is trying to divert attention to his outrageous conduct by forcing the issue of Plaintiff’s deposition by filing a motion to compel Plaintiff’s deposition while completely ignoring his own conduct in walking out of his deposition.
An excerpt of the video of the deposition of Sorrels can be viewed at https://youtu.be/rCDNg3aaBEU.1
The excerpt demonstrates that Sorrels engages in discovery abuse and has no truthful answer to how he could claim he has absolutely no documents but yet he attaches documents to his summary judgment motions.
Sorrels never filed a motion for protection nor did he ever file anything that would justify his abusive conduct at his deposition.
Without the actual transcript available, the undersigned is fairly certain that Sorrels never once objected.
It is without dispute that Sorrels did not seek assistance of the Court as to any request not to answer certain questions.
It is not “harassing” for Sorrels to answer questions related to his obvious lying about the existence of documents.
In fact, Sorrels even admitted during the brief examination that he had not checked to see if billing records exist regarding the underlying matter. And yet Sorrels had previously contended that his billing records was proof he was unaware of the hiding of the expert testing since he claimed he had not paid for the test.
How can Sorrels get away with such conduct?
Texas citizens don’t actually know who they are voting for because of the way the voting system works. Judicial appointments need to be independent and free of political donations. Harris County elections should be separate for judicial nominees. https://t.co/tfHITFQWBL pic.twitter.com/BwGcwnQ0z5
— lawsinusa (@lawsinusa) August 4, 2023
II. Background of the Underlying Case
The underlying case revolves around Sorrels acting as Attorney-in-Charge for a very complex patent infringement case. During the short time Sorrels appeared at his deposition, he admitted he had never handled any such case in his career.
1 The complete video deposition can be viewed at https://youtu.be/j3mgluWyz0s. A courtesy copy of the video deposition is being provided to the Court via USB. Once the transcript is available, Plaintiff can also provide a written copy of the deposition.
And yet in 2007, Sorrels was going to try such a complex in U.S. District Court, Judge Leonard Davis, Tyler, Texas.
On or about December 16, 2004, Plaintiff and his company, ClearValue, Inc. (“ClearValue”), entered into an attorney-client relationship with Randall Sorrels (Sorrels) and Abraham, Watkins, Nichols, Sorrels, Agosto and Friend, LLP (“Sorrels Firm”) to enforce Plaintiff’s and ClearValue’s rights against SNF Holding Company and its subsidiaries (“SNF”), as well as their distributors and/or customers (“SNF Distributors”) for infringement of U.S. Pat. No. 6,120,690 according to 35 U.S.C. §§ 271-287, along with misappropriation of Trade Secrets of the ‘690 Patent and of U.S. Patent Application 10/413,849, according to Texas State Law.
A Federal Complaint was filed on January 4, 2005.
On or about September of 2005, at a time which was after federal disclosures within the Federal Complaint, Plaintiff was having coagulant performance issues with his ClearValue customers. During investigation of the performance issues, on or about November and December of 2005, Plaintiff analyzed a sample of DADMAC from a shipment of Hychem CP 627, finding the Hychem CP 627 to measure 585 centipose seconds (“cps”) viscosity at 22.5 percent concentration in water; this is when, the release specification for the Hychem CP 627, a.k.a. PRP 4820, is 1,000 to 3,000 cps viscosity at 19 to 21 percent concentration in water and was represented to be 1,980 cps viscosity at 20.9 percent concentration in water. Therefore, it is obvious that the delivered DADMAC was not as represented, being nothing more than out-of-specification product.
Plaintiff’s Company, ClearValue, lost its customer base due to poor product performance of said misrepresented DADMAC; with the loss of ClearValue’s customer base, Plaintiff lost his associated income and financial vehicle to commercialize his significant portfolio of intellectual property. Said out-of-specification product was proximate cause of said poor product performance.
At the request of Sorrels, Plaintiff’s Technical Expert for the Federal Complaint, Mr. James Stoll, coordinated testing of the out-of-specification DADMAC.
Upon learning of the out-of-specification nature of the sampled DADMAC, Plaintiff asked Sorrels to add a claim within the Federal Complaint related to the shipment of said out-of-specification product by SNF.
Sorrels refused, instructing Plaintiff and Mr. Gordon Waggett, Plaintiff’s Patent Attorney at the time, to label the out- of-specification product testing results as attorney-client work product.
The “SNF” product line comprises high molecular weight (“HMW”) poly diallyl di-methyl ammonium chloride (“DADMAC”) polymers and HMW epichlorohydrin di-methyl amine (“Epi- DMA”) polymers. The HMW DADAMC when used with aluminum chlorohydrate (“ACH”) in the clarification of law alkalinity water is taught and claimed in the ‘690 Patent and is taught and claimed in any water is taught and claimed in the ‘849 Application. HMW Epi-DMA with ACH in the clarification of water is taught and claimed in the ‘849 Application; wherein all cases, this technology was a trade secret of Plaintiff and ClearValue prior to patent publication.
SNF HMW DADMAC, while sold under many a.k.a., is labeled PRP 4820 and PRP 4620. PRP 4820 has an SNF Distributor label of “Hychem” HYPERFLOC CP 627 (“Hychem CP 627”).
Sorrels had told Plaintiff that said out-of-specification product and out-of-specification product testing were not a part of the patent enforcement litigation.
At trial, the Defendants SNF represented to the court that the out-of-specification product was in-specification product, made representations to the Court that the molecular weight of the out-of-specification product demonstrated that SNF did not infringe the ‘690 Patent and that Plaintiff new this all along and was thus defrauding the court.
Sorrels had to be aware that any out-of-specification product testing was coordinated by Plaintiff’s Technical Expert, the out-of-specification product testing results were discoverable by SNF pursuant to Federal Rules of Civil Procedure (“FRCP”) 26 and 37.
Defendants SNF filed a sanctions motion pursuant to FRCP 11, 26, 37 and 41 during trial of the Federal Complaint due to the withholding of the out-of-specification testing results.
A hearing was held by Judge Leonard Davis on March 29, 2007.
Judge Davis sanctioned Plaintiff $2.8 million and struck Plaintiff’s Pleadings, which indirectly invalidated the ‘690 Patent.
Had Randall Sorrels not labeled the out-of-specification product testing attorney-client work product, the first trial would have completed in 2007 and Plaintiff would not have been sanctioned nor would Plaintiff had the stigma associated with the sanction.
As there are many SNF Distributors serving thousands of water purification plants across the United States, many of which would combine SNF HMW DADMAC and/or HMW Epi-DMA with ACH in the clarification of water, it was important to Plaintiff and ClearValue that Sorrels complete discovery with SNF to define which SNF Distributors either misappropriated Plaintiff’s Trade Secrets with SNF and/or infringed the ‘690 Patent with SNF.
Sorrels refused. Sorrels refused to pursue discovery with SNF and/or to file a motion to compel against SNF.
Sorrels tried to force Plaintiff to take a quick settlement and refused to spend money on discovery that was required under Sorrels’ fee agreement with Plaintiff. When Plaintiff refused to settle, Sorrels withdrew from the Federal Cause on June 27, 2006.
However, due to stigma associated with the sanctions, due to that same stigma, Plaintiff was forced to represent himself Pro Se’ during pendency of the Federal Complaint from October 5, 2009 until March 9, 2010; as, Plaintiff was unable to locate litigation counsel. Plaintiff, in essence, wore a Scarlet Letter due to the sanctions.
As Plaintiff did not attend law school and was not a licensed attorney, Plaintiff worked extreme hours and conducted significant research to continue the Federal Complaint. Plaintiff did finally contract an excellent firm, Vickery, Walder and Mallia, LLP (“Justice Seekers”) on March 9, 2010.
Recognizing Sorrels’ error and SNF’s false representations, Justice Seekers worked diligently and tirelessly for Plaintiff and ClearValue to prepare for and try the case in a matter of weeks.
A second trial was held on April 12, 2010; wherein, the jury awarded Plaintiff and ClearValue $3,000,000 in damages for SNF’s misappropriation of trade secrets and $2,172,617 in damages for SNF’s patent infringement, together totaling $5,172,617.
All of damages resulted were from sales of HMW DADMAC and HMW Epi-DMA; as, there was no SNF Distributor information available.
The Final Judgment and Order of Leonard Davis, dated November 2, 2010, struck Plaintiff’s damages for misappropriation of trade secrets, while awarding Plaintiff pre – and post – judgment interest.
Plaintiff and ClearValue have appealed to the Federal Court of Appeals for the Federal Circuit the portion of final judgment of Judge Davis striking Plaintiff’s damages for misappropriation of trade secrets. Plaintiff’s damages due to misappropriation of trade secrets and patent infringement, including interest is about $7,000,000.
Plaintiff’s trade secrets, as represented in the published claims of the ‘690 Patent and the ‘849 Application, are for clarification water and comprise HMW DADMAC and/or HMW Epi- DMA with ACH.
Plaintiff’s issued patent claims, as presented in the ‘690 Patent, are for clarification of water and comprise HMW DADMAC with ACH in low alkalinity water.
To develop coagulants of the ‘690 Patent or ‘849 Application, SNF HMW DADMAC and/or HMW Epi-DMA is blended with ACH in a ratio of about 0.5:0.5 to 0.99:0.05 HMW
DADMAC and/or Epi-DMA:ACH with an average of near 0.1:0.9. Therefore, including any reasonable profit and operating expense for SNF Distributors, every $1 in HMW DADMAC and/or Epi-DMA represent about near $20 in coagulant; while, Plaintiff, due to Federal Latches, lost near 6 years of 12 years in available damages. Therefore, had Sorrels completed discovery, Plaintiff and ClearValue could have timely included SNF Distributors in the Federal Complaint for damages of near $70,000,000 ($7,000,000 X 20 X 6 years/12 years).
Due to statutes of limitations, Plaintiff’s trade secret misappropriation damages associated with SNF Distributors and Customers of SNF Distributors is gone. Due to statutes of limitations, Plaintiff’s ‘690 Patent infringement damages are limited to a 6 year time frame; therefore, any and all patent infringement damages from SNF Distributors and/or the Customers of SNF Distributors prior to 2005 was gone.
Had Sorrels not labeled the out-of-specification product testing attorney-client work product, the first trial would have completed in 2007 and Plaintiff would not have been sanctioned nor would Plaintiff had the stigma associated with the sanction.
Had Randall Sorrels not labeled the out-of-specification product testing attorney-client work product and filed a claim against SNF for Fraud, as requested by Plaintiff, the first trial would have included lost income of Plaintiff and loss of ClearValue as a commercial entity in 2007.
Plaintiff has asserted that had Randall Sorrels completed discovery, as contracted and per duty: 1) the trade secret misappropriation damages from SNF Distributors, 2) the ‘690 Patent infringement damages from SNF Distributors prior to 2005, and 3) the water clarification damages prior to 2005 would have been available to Plaintiff in the Federal Complaint.
III. Standard of Review
A trial court is given the broadest discretion in imposing discovery sanctions and in choosing the appropriate sanctions.
See Downer, 701 S.W.2d at 241;Carr v. Harris County, 745 S.W.2d 531, 532 (Tex.App.—Houston [1st Dist.] 1988, no writ).
In determining whether to impose discovery sanctions, the trial court is not limited to considering only the specific violation that sanctions are finally imposed for; it may consider everything that has occurred during the litigation.
White v. Bath, 825 S.W.2d 227, 230 (Tex.App.—Houston [14th Dist.] 1992, writ denied), cert. denied, 507 U.S. 1039, 113 S.Ct. 1868, 123 L.Ed.2d 488 (1993).
When a party abuses the discovery process by resisting discovery (such as by failing to attend a deposition), a trial court may impose sanctions.
Tex. R. Civ. P. 215.3; see Sheffield Dev. Co. v. Carter & Burgess, Inc., No. 02-11-00204-CV, 2012 WL 6632500, at *5 (Tex. App.–Fort Worth Dec. 21, 2012, pet. dism’d) (mem. op.)
(“Trial courts have broad discretion to impose discovery sanctions to secure compliance with discovery rules, to deter other litigants from similar misconduct, and to punish violators.”);
Hernandez v. Mid-Loop, Inc., 170 S.W.3d 138, 144 (Tex. App.–San Antonio 2005, no pet.)
(holding that a trial court has discretion to impose sanctions when a party fails to obey the court’s order to comply with proper discovery requests).
Texas Rule of Civil Procedure 199.5( e) specifically states the only objections that can be made during a deposition are
1) Objection, leading,
2) Objection, form
3) Objection, nonresponsive.
During the 57 minute deposition, Sorrels did not make any of these objections.2
Sorrels did not express that any of the questions could not be responded to because of attorney- client privilege.
Any such privilege objection would be frivolous because Sorrels is pro se unless he claims he talks to himself.
2 Again, counsel has been waiting for the transcript but the video still did not reveal any such objections.
And yet, Sorrels claimed attorney-client privilege to the documents requested.
That is likewise absurd because any such privilege regarding the underlying case belongs to the Plaintiff not to Sorrels.
There are very few instances in which it is proper for an attorney to instruct a witness not to answer a pending question.
Rule 199.5(f) states it is limited to preserve a privilege, comply with a court order, or protect a witness.
The questions about Sorrels not producing relevant documents related to the underlying case or to his defense clearly do not warrant an instruction not to answer.
However, Sorrels didn’t just refuse to answer and give some basis, he simply halted the deposition because he “felt he was being harassed.” Sorrels was caught in an obvious lie when he was asked how he could claim there were no documents and yet he had attached documents, some of them sealed documents, to the previous summary judgment.
Sorrels claim he didn’t even know there was the possibility of an issue until after Hurricane Ike was another lie since Sorrels started playing the blame game well before Ike. Sorrels was simply caught in a lie and didn’t want to answer any further questions to reveal the extent of his perjury.
Confronting a witness who is obviously lying about the existence of relevant documents is not grounds for any attorney to instruct the witness not to answer.
Had Sorrels been represented by an attorney, there would have been no basis for that attorney to instruct him not to answer questions about what happened to relevant documents.
Likewise, there is no rule that provides a witness can simply walk out of a deposition because he doesn’t like the questions.
Having a very busy schedule is typical for all kinds of witnesses; doctors, engineers, moms with children, High School teachers etc. Running for State Bar president does not provide any basis for Sorrels to extinguish the Rules of Civil Procedure or the Rules of Ethics.
Sorrels’ conduct violates numerous Rules related to discovery and ethical rules that just a few will highlight how abusive his tactic in walking out of a deposition should be treated by the Court.
O’Connor’s Texas Rules has an entire paragraph on “Lying during depositions”. See section 10, Deposition Sanctions pg 537.
“If a party-deponent lies (i.e., perjuries himself) during a deposition, the trial court can impose sanctions ranging from the payment of expenses and attorney fees to a default judgment.”
See TRCP 215.2(b); In re Reece, 341 S.W.3d 360 (Tex. 2011).
If a party to be deposed does not attend a noticed deposition, the trial court can impose sanctions including the ultimate sanction of dismissal or default.
Showing up for a noticed deposition that the Court had ordered the parties to schedule and then leaving in less than an hour because either the deponent had better things to do; ie campaign for Bar President or because the deponent didn’t want to answer questions about relevant matters to which the deponent was obviously lying, is the same as never showing up.
If a deponent refuses to answer a question asked in a deposition, the trial court can impose sanctions.
See TRCP 215.1(b)(2).
A deponent’s evasive or incomplete answer can be treated as a refusal to answer a question.
See TRCP 215.(1)(c). The Court may strike a party’s pleadings.
See First State Bank v. Chappell & Handy, P.C., 729 S.W.2d 917 (Tex.App.- Corpus Christi 1987, writ ref’d n.r.e.).
In the best case scenario, Sorrels if he truly felt being asked about the documents he claimed were totally destroyed by Ike but yet he could attach to his summary judgment motions after 2011 was so harassing he needed to “suspend” the deposition to get a ruling, then TRCP 199.5(g) only permits a suspension “for the time necessary to obtain a court ruling.”
Sorrels could have waited when the undersigned tried to get the Court on the phone.
Sorrels could have filed a motion putting the issue before the Court.
Sorrels could have sought a protective order.
Sorrels could have requested a hearing.
Sorrels did none of these things.
Already acting like he deserves special treatment because he “may” be President of the State Bar of Texas, Sorrels believes he simply has the right to “walk-out” of the deposition.
Sorrels believes he can immediately demand the deposition of the Plaintiff and file an immediate motion to compel his deposition without ever having to even offer to complete his deposition.
Sorrels never even indicated he wanted to take Plaintiff’s deposition before. The Court’s DCO ended discovery such that absent agreement of the parties, Sorrels would need court permission to take Plaintiff’s deposition anyway.
Obviously, Sorrels believes we are operating under Rules of Civil Procedure governing discovery that “exempt” persons who are running for State Bar President. One can only imagine what Rules he believes will be operational in this case if he is actually elected President.
Sorrels is wrong and this Court needs to firmly establish that a High School teacher has the same rights to force a lawyer running for State Bar president to comply with the Rules of Procedure applicable to all.
There are no special “Rules” for Sorrels either as past HBA president or future State Bar of Texas president. Sorrels conduct simply has no excuse.
Sorrels cannot complain the questions were abusive or misleading or otherwise harassing. Even the tone of the deposition was very calm. As a board certified trial lawyer, former HBA president and a candidate for Bar President, Sorrels must be aware of true deposition harassment.
Instead, Sorrels, the DEPONENT, chose to act as one of the poster-child bad boys.
It is rare to deal with witness who simply act-up because usually there is counsel to advise them against such behavior.
See GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 184 (E.D. Pa. 2008), the Court discussed uncivil conduct by a witness at a deposition which is “less discussed . . . but nonetheless just as pernicious.”
Here, Sorrels is both witness and lawyer so he knows better but believes his status as a candidate brings him special privileges.
Lawyers are under clear guidance of what they cannot do during a deposition.
One need only view such posted videos to see what true harassment in a deposition looks like.
See Texas Style Deposition, https://youtu.be/ZIxmrvbMeKc
A review of the video of Sorrels’ deposition makes it apparent that Sorrels was lying about the existence and the destruction of all documents and that he had no basis to walk out of the deposition.
Examples of harassment are provided by other cases in which “during a deposition, plaintiff’s counsel asked a witness whether he had ever been “ordered to obtain psychiatric counseling or anger-management therapy.”
The lawyer also asked whether the witness had ever engaged in homosexual conduct or been in any type of “homosexual clique with any other defendants” in the action. Id. at 468.
The attorney defending the deposition instructed the witness not to answer on the basis that the questions were designed to harass. Id.
Even in the face of such abuse, the Seventh Circuit explained, when there is harassment, counsel for the witness may halt the deposition and apply for a protective order” pursuant to Federal Rule of Civil Procedure 30(d)(4). But he “must not instruct the witness to remain silent.” Id. at 467-68. Instead, “[a] person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” Id.
In Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34 (Del. 1994), the Delaware Supreme Court considered an interlocutory appeal taken during expedited litigation.
A Delaware Supreme Court Justice wrote the now-famous ‘Addendum’ to the court’s opinion, in which the court sua sponte raised the subject of professionalism in deposition practice, both in Delaware and throughout the nation. The Court’s ‘Addendum’ described the exchange as “
The excerpt is repeated verbatim, in the court’s Addendum. Portions relevant to this article are repeated here:
Q: (By [EL . . .]) Okay. Do you have any idea why Mr. [X] was calling that material to your attention?
DL: Don’t answer that. How would he know what was going on in Mr. [X]’s mind? Don’t answer it. Go on to your next question.
EL: No, Joe— DL: He’s not going to answer that. Certify it. I’m going to shut it down if you don’t go to your next question.
EL: No. Joe, Joe—
DL: Don’t ‘Joe’ me, asshole. You can ask some questions, but get off of that. I’m tired of you. You could gag a maggot off a meat wagon. Now, we’ve helped you every way we can.
EL: Let’s just take it easy.
DL: No, we’re not going to take it easy. Get done with this. EL: We will go on to the next question.
DL: Do it now.
EL: We will go on to the next question. We’re not trying to excite anyone.
DL: Come on. Quit talking. Ask the question. Nobody wants to socialize with you.
EL: I’m not trying to socialize. We’ll go on to another question. We’re continuing the deposition. DL: Well, go on and shut up. EL: Are you finished? . . . * * *
DL: I may be and you may be. Now, you want to sit here and talk to me, fine. This deposition is going to be over with. . . .
EL: Are you finished? WITNESS: Come on, Mr. [EL], move it. EL: I don’t need this kind of abuse.
WITNESS: Then just ask the next question……. * * *
DL: You understand me? Don’t talk to this witness except by question. Did you hear me? Id. at 53–54.
While this case has been pending, such famous celebrities have just refused to answer questions or walked out of depositions.
In March 2014, in Miami, Fla., in Justin Bieber’s Miami criminal attorney Roy Black’s office, Justin Bieber was being questioned about a lawsuit alleging he instructed his bodyguard to attack photographer Jeffrey Binion and take his film card. Bieber didn’t want to give answers to the questions and became evasive when questions were asked regarding his and his bodyguard’s attacks on photographers in different cities around the world.
“When Binion’s lawyer, Mark DiCowden, questioned Bieber regarding these attacks, Bieber stated that he simply couldn’t recall the occasions,” “Bieber appeared to have selective amnesia during the deposition.”
Then, Bieber left the room when Binion’s lawyer asked him about an incident with his bodyguard and a photographer when Bieber and Selena Gomez were together. According to press reports of the deposition, “This was a hot button topic, and [Biber] flipped out. He didn’t answer and left the room,”
Bieber’s lawyers claimed it was harassment and advised him not to answer. At times during the deposition, Bieber closed his eyes, saying to the examining attorney, “I don’t have to listen to anything you have to say.” Sorrels took a page out of Bieber’s deposition tactics and took it to a new level by walking out in less than an hour.
Sorrels walked out before even a “morning break” could be called.
The obvious question is that since when do people who think they have some celebrity status get to change the rules of procedure applicable to everyone?
And how much celebrity does a deponent need to be above the Rules. That is the question presented in this case regarding Sorrels who certainly does not have Bieber’s status by simply running for State Bar president.
The Texas Attorney General @TXAG accused Tami Craft of engaging in Bribery and Extortion
— lawsinusa (@lawsinusa) August 16, 2023
IV. Argument and Authorities
The Texas Rules of Civil Procedure clearly articulate the proper standard of conduct for counsel during oral depositions. First and foremost, “counsel should cooperate with and be courteous to each other . . . .”
Tex. R. Civ. P. 199.5(d).
Objections to questions during the oral deposition are limited to “Objection, leading” and “Objection, form” and objecting counsel may only provide an explanation for his objection if requested by the party taking the oral deposition.
Tex. R. Civ. P. 199.5(e).
Argumentative objections or explanations not only waive the objection, but may be grounds for terminating the oral deposition or assessing costs or other sanctions.
Tex. R. Civ. P. 199.5(e).
Further, an attorney may instruct a witness not to answer a question during an oral deposition if necessary to preserve a privilege, and in so doing, must give a concise, nonargumentative, nonsuggestive explanation of the grounds for the instruction if requested.
Tex. R. Civ. P. 199.5(f).
When instructing a witness not to answer a question, an attorney must have a good faith factual and legal basis for doing so at the time.
Tex. R. Civ. P. 199.5(h).
In addition to the clear standards in the Rules pertaining to attorney conduct specifically applying to depositions, all counsel are required to display a level of professionalism and courtesy towards fellow members of the bar. Indeed, “[a] lawyer should demonstrate respect for the legal system and for those who serve it, including . . . other lawyers.”
Tex. R. of Professional Conduct, Preamble, ¶ 4 (Tex. Gov’t Code tit. 2, subtit. G app. A, Art. 10 § 9).
“A lawyer should always adhere to the highest principles of professionalism.” Texas Lawyer’s Creed, § 1. This level of professionalism requires counsel to “avoid disparaging personal remarks or acrimony towards opposing counsel” and prohibits an attorney from “mak[ing] objections or giving instructions to a witness for the purpose of delaying or obstructing the discovery process.”
Texas Lawyer’s Creed, §§ III.10, III.17.
The Court has the inherent power to enforce these rules by fashioning appropriate discipline when conduct of counsel so requires.
Clark v. Bres, 217 S.W.3d 501, 515 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)
(“Texas courts also possess the inherent power to discipline an attorney’s behavior. A court may call upon this power to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity.”) (internal citations omitted).
Sorrels’ conduct leading up to and during the deposition clearly violated Rule 199 and, more importantly, falls well below acceptable standards of professional conduct. In abusing and obstructing the discovery process, Sorrels unilaterally attempted to change agreed to deposition times on the eve of the deposition.
Rule 215 of the Texas Rules of Civil Procedure provides for the imposition of sanctions in the event of an abuse of discovery.
Tex. R. Civ. P. 215.
The trial court has broad discretion in deciding whether sanctions are appropriate, subject only to the sanctions being “just.”
Trans American Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
Whether sanctions are just is determined by a two-part test. Id. First, there must be a direct relationship between the offensive conduct and the sanction imposed, which requires a trial court to at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both. Id. Second, the sanction must not be excessive. Id.
Further, when considering the imposition of sanctions, the Court is not limited to considering only the specific violation for which sanctions are finally imposed, but may consider everything that has occurred during the history of the litigation.
Clark v. Bres, 217 S.W.3d at 515.
V. Relief Requested
Plaintiff request an immediate hearing as to Sorrels outrageous conduct. Plaintiff request that Sorrels not be allowed to conduct any discovery until his discovery abuse has been addressed by the Court.
Since he represents himself, then the sanctions should be double; for his conduct as a lawyer and for his conduct as a party-deponent. Plaintiff request that Sorrels’ pleadings be stricken and that the Court enter a default judgment against him setting the amount of damages as the only issue to be tried.
In the alternative, Plaintiff is entitled to sanctions to cover the cost of missing work, costs of the deposition, and attorney’s fees and some limits on discovery so that Sorrels is not able to continue the abuse.
In the instant case, Plaintiff asks that this Court impose the following sanctions on Sorrels due to his improper conduct outlined herein:
a) Entry of an order dismissing Sorrels pleadings and entry of a default judgment;
b) Entry of an order requiring Sorrels to pay total monetary sanctions to Plaintiff;
c) Alternatively, entry of an order forbidding Sorrels from conducting further discovery;
d) Alternatively, entry of an order requiring Sorrels to retain counsel for the duration of this case;
e) Alternatively, requiring Sorrels deposition to be conducted in the Court room under Court supervision;
f) Alternatively, Entry of an order requiring Sorrels to appear for six hours of a deposition at his expense including paying attorneys’ fees to Plaintiff as well as court reporter and video fees.
Plaintiff respectfully request the Court grant this Motion in its entirety and award the sanctions against Sorrels requested herein, memorialize that award by entering the proposed order attached hereto, and for any other further relief to which they are justly entitled.
By:/s/: Lloyd E. Kelley
LLOYD E. KELLEY
State Bar No. 11203180
2726 Bissonnet, Suite 240, PMB#12
Houston, Texas 77005
COUNSEL FOR PLAINTIFF
CERTIFICATE OF CONFERENCE
I hereby certify that on March 2, 2018, I conferred with Randy Sorrels regarding this motion by both email and telephone and he is opposed.
By:/s/: Lloyd E. Kelley
LLOYD E. KELLEY
Post Appeal: The Partial Trial and the Exclusions Granted
“Upon request, a party must disclose “any indemnity and insuring agreements” TEX. R. CIV. P. 194, “under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for payments made to satisfy the judgment.” TEX. R. CIV. P. 192.3.”
ORDER SIGNED GRANTING DIRECTED/INSTRUCTED VERDICT