Keplar v. Google LLC

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JEFFREY KEPLAR, §

§

Plaintiff, §

§

V. § No. 3:22-cv-2281-B

§

GOOGLE, LLC, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER ON THE

PARTIES’ CROSS-MOTIONS FOR SANCTIONS

Plaintiff Jeffrey Keplar filed a Motion to Compel. See Dkt. No. 66.

Keplar asked the Court (1) to order the deposition of Phil Moyer, the VP of

Global AI Business and Solutions of Defendant Google, LLC’s Google Cloud

organization, and (2) to order the deposition of one or more of Google’s corporate

representatives under Federal Rule of Civil Procedure 30(b)(6) to address (a), as

relevant to Plaintiff’s age discrimination claim, the ages, qualifications, and

circumstances of separation, reduction in scope of duties, demotion, or replacement

of employees of Google employed concurrently with Keplar in the Google Cloud sales

organization of which Keplar was a part and (b), as relevant to Plaintiff’s ERISA

claim, the identity and circumstances of separation, if any, of so-called Level 8

employees of Google employed concurrently with Keplar in the Google Cloud sales

organization along with Keplar. See Dkt. No. 76 (summarizing Keplar’s requested

relief on the Motion to Compel).

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After hearing oral argument from Keplar’s counsel and Google’s counsel, the

Court granted in part and denied in part that motion. See Dkt. No. 76.

Keplar later filed an Emergency Motion to Enforce Order on Motion to

Compel and Extend Discovery Period as Necessary, and to Compel Responses to

Interrogatories, Requests for Admission and Document Requests. See Dkt. No. 79.

But the parties then filed a Joint Notice, reporting on an agreement that they

reached regarding the disputes raised in the emergency motion and providing “as

follows:

• The deposition of Philip Moyer shall take place remotely on February

14, 2024, beginning at 10:00 a.m. CT;

• The deposition of Google’s Corporate Deponent shall take place

remotely on February 15, 2024 beginning at 1:30 p.m. CT; and

• In advance of Google’s Corporate Deponent deposition, Google will

supplement to the extent necessary and consistent with Magistrate

Judge Horan’s January 9, 2024 Order [DKT. 76] its responses to

Plaintiff’s First Interrogatories, Requests for Admission and Document

Requests and will provide responsive documents to the extent

necessary and consistent with Magistrate Judge Horan’s January 9,

2024 Order [DKT. 76].”

Dkt. No. 83 at 1. And the Joint Notice reports that “the parties further agree that

Court involvement regarding [the emergency motion] is unnecessary at this time.”

Id. at 2.

But the parties then contacted the Court on February 14, 2024 regarding a

dispute related to the scope of Phil Moyer’s deposition testimony that the Court had

previously ordered in granting in part and denying in part Keplar’s Motion to

Compel. See Dkt. Nos. 76 & 86.

The Court held an emergency telephone conference on this Oral Motion for

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Clarification of the Court’s Previous Order [Dkt. No. 85] and provided the requested

clarification. See Dkt. No. 87.

Keplar has now filed a Motion for Sanctions. See Dkt. Nos. 88 & 89 & 92.

Google filed a response, see Dkt. No. 101, and Keplar filed a reply, see Dkt. No. 103.

Google also filed a Cross-Motion for Sanctions, see Dkt. No. 101, to which

Keplar responded, see Dkt. No. 104, and in support of which Google filed a reply, see

Dkt. No. 117.

For the reasons and to the extent explained below, the Court grants in part

and denies in part Keplar’s Emergency Motion to Enforce Order on Motion to

Compel and Extend Discovery Period as Necessary, and to Compel Responses to

Interrogatories, Requests for Admission and Document Requests [Dkt. No. 79],

Keplar’s Motion for Sanctions [Dkt. No. 88], and Google’s Cross-Motion for

Sanctions [Dkt. No. 101].

Background

In the January 9, 2024 Electronic Order granting in part and denying in part

Keplar’s Motion to Compel [Dkt. No. 66], the Court explained and ordered that,

[a]fter narrowing the relief that he seeks in his reply, Keplar asks the

Court (1) to order the deposition of Phil Moyer, the VP of Global AI

Business and Solutions of Defendant Google, LLC’s Google Cloud

organization, and (2) to order the deposition of one or more of Google’s

corporate representatives under Federal Rule of Civil Procedure

30(b)(6) to address (a), as relevant to Plaintiff’s age discrimination

claim, the ages, qualifications, and circumstances of separation,

reduction in scope of duties, demotion, or replacement of employees of

Google employed concurrently with Keplar in the Google Cloud sales

organization of which Keplar was a part and (b), as relevant to

Plaintiff’s ERISA claim, the identity and circumstances of separation,

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if any, of so-called Level 8 employees of Google employed concurrently

with Keplar in the Google Cloud sales organization along with Keplar.

Federal Rule of Civil Procedure 37(a) generally governs motions

to compel discovery but does not, by its terms, address a motion to

compel a party to appear for a deposition. See Fed. R. Civ. P. 37(a). The

only recourse expressly provided under the Federal Rules for a party

seeking another party’s deposition is to properly notice the deposition

and file a motion under Rule 37(d)(1)(A) if and when the deponent fails

to appear. See generally Robinson v. Dallas Cty. Cmty. Coll. Dist., No.

3:14-cv-4187-D, 2016 WL 1273900, at *2 (N.D. Tex. Feb. 18, 2016).

But, “[u]nlike Rule 37, which allows a court to grant a motion to

compel only after a party has failed to appear for a properly noticed

deposition, [Federal Rule of Civil Procedure] 26(c)(1) allows a party or

nonparty from whom discovery is sought to move for a protective order

so long as that person has ‘in good faith conferred or attempted to

confer with other affected parties in an effort to resolve the dispute

without court action.’” Dang ex rel. Dang v. Eslinger, No.

6:14-cv-37-Orl-21TBS, 2014 WL 3611324, at *2 (M.D. Fla. July 22,

2014). Under Federal Rule of Civil Procedure 26(c), the Court “may, for

good cause, issue an order to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.” FED. R. CIV.

P. 26(c)(1). “[T]he burden is upon [the party seeking the protective

order] to show the necessity of its issuance, which contemplates a

particular and specific demonstration of fact as distinguished from

stereotyped and conclusory statements.” In re Terra Int’l, 134 F.3d 302,

306 (5th Cir. 1998) (citation omitted). A protective order is warranted

in those instances in which the party seeking it demonstrates good

cause and a specific need for protection. See Landry v. Air Line Pilots

Ass’n, 901 F.2d 404, 435 (5th Cir. 1990). The Court has broad

discretion in determining whether to grant a motion for a protective

order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985).

“Under somewhat similar circumstances, even where the

movant has not served a notice of deposition or subpoena, other courts

have treated a response to a motion to compel a deposition as a motion

for a Rule 26(c)(1) protective order or have otherwise decided the

fully-briefed issues so long as they were sufficiently defined and

concrete.” Robinson, 2016 WL 1273900, at *4. And, here, where Google

is effectively asking for a protective order from taking these

depositions and the issues have been fully argued to the Court, and in

light of the impending “expiration of the discovery period,” the Court

declines Google’s invitation to deny the motion because Keplar has not

served deposition notices and instead “elects to follow these courts’

lead, treat [Google’s] response as a request for a Rule 26(c)(1)

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protective order, and address the merits of the dispute as to whether

[Google] should be ordered to” produce these witnesses for deposition.

Id. at *5.

As to the deposition of Phil Moyer, assuming that he qualifies as

a high-level executive subject to the federal counterpart of Texas’s

“Apex doctrine,” the Court finds that his testimony regarding his

alleged or acknowledged involvement in the review and rating of

Keplar and the decisions to discipline and then terminate Keplar are

relevant to Keplar’s claims. In short, Keplar seeks to question Mr.

Moyer about relevant facts of which he has unique personal knowledge

and that cannot be discovered through “less intrusive means,”

including the depositions that have already been taken of Yolanda

Piazza and Elizabeth Elkins and, if such a finding is called for, the

Court therefore finds, under the circumstances, “exceptional” or

“extraordinary” circumstances to permit this deposition. See Gaedeke

Holdings VII, Ltd. v. Mills, No. 3:15-mc-36-D-BN, 2015 WL 3539658,

at *3-*4 (N.D. Tex. June 5, 2015).

As to the 30(b)(6) topics, courts do limit discovery in this context

to information on current or former employees who could be a

plaintiff’s comparators -- that is, who are sufficiently similar to Keplar

for these purposes. And the Court is persuaded that, as Google argues,

Keplar’s supervisor and subordinates (that is, here, individual

contributors who were supervised by directors such as Keplar) are not

sufficiently similarly situated to warrant discovery under Federal Rule

of Civil Procedure 26(b)(1). See generally Grimes v. Wal-Mart Stores

Texas, L.L.C., 505 F. App’x 376, 379 (5th Cir. 2013); Lee v. Kansas City

S. Ry. Co., 574 F.3d 253, 260-61 (5th Cir. 2009); Amezquita v.

Beneficial Texas, Inc., 264 F. App’x 379, 386 (5th Cir. 2008). But, as

Google acknowledges, Ivan Fernandez, the employee who replaced

Keplar after his termination, might be considered a comparator. The

Court finds, under Rules 26(b)(1) and 30(b)(6), that Google must

present a corporate representative to testify regarding the ages,

qualifications, and circumstances of separation, reduction in scope of

duties, demotion, or replacement of any employees of Google, including

Mr. Fernandez, who were employed as directors (the same level as

Keplar) concurrently with Keplar in the Financial Services Industry

vertical of the Google Cloud sales organization of which Keplar was a

part and regarding the identity and circumstances of separation, if

any, of so-called Level 8 employees who were employed as directors

(the same level as Keplar) concurrently with Keplar in the Google

Cloud sales organization of which Keplar was a part.

Without opposition, the Court will also grant Googles requested

protective order to require that, in any deposition taken going forward

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in this case, (1) all counsel of record must be visible on camera;

visibility requires that the counsel’s face must not be obscured from

the witness or other participants; (2) all participants to a deposition

proceeding must announce their presence in the deposition if

participating by remote means; (3) all Orders of the Court (including

the [54] Stipulated Protective Order) must be observed, and any person

prohibited from reviewing a document marked “Attorneys Eyes Only”

must leave the deposition before the document is revealed, before

questions about the document are asked, and before the document is

introduced as an exhibit; (4) counsel for the parties must allow both

witnesses and opposing counsel requested breaks when no question is

pending; and (5) counsel examining any witness must allow the

witness to fully complete his or her answer to any question asked

without interruption or other misconduct to impede the answer. See

generally FED. R. CIV. P. 30(b)(5)(B), 30(c)(2).

Finally, after considering all the circumstances here, the Court

determines that, under Federal Rule of Civil Procedure 37(a)(5)(C), the

parties will bear their own expenses, including attorneys’ fees, in

connection with this motion.

Dkt. No. 76.

Keplar reports in his Motion for Sanctions that, “[o]n February 14, 2024, at

approximately 11 a.m. Central Time, Magistrate Judge David Horan held an

emergency telephone conference during the deposition of Philip Moyer required by

his February 9, 2024 order on the emergency motion, and ruled, among other

things, that Mr. Moyer was required by such order to complete his deposition of up

to seven hours on February 14,” 2024. Dkt. No. 88 at 1.

To clarify, during that emergency telephone conference, the Court, in

response to Google’s counsel’s protests that Mr. Moyer should not be deposed for

more than a few hours, clarified that the deposition of Mr. Moyer as ordered by the

Court would proceed based on Federal Rule of Civil Procedure 30, which provides

that, “[u]nless otherwise stipulated or ordered by the court, a deposition is limited

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to 1 day of 7 hours.” FED. R. CIV. P. 30(d)(1).

In connection with his Motion for Sanctions, Keplar explains that, “[b]ased on

the fact that summary judgment proceedings in this action are to begin on February

21, 2024, Plaintiff asks for expedited consideration of this motion for sanctions and

this supplement so that all discovery products to which Plaintiff is entitled can be

available to Plaintiff prior to the time at which he is required to respond to a

summary judgment motion.” Dkt. No. 89 at 4. The Court did order expedited

briefing on both motions for sanctions. See Dkt. Nos. 91 & 94 & 100 & 111. And

Google has moved for summary judgment. See Dkt. No. 95. Goodman’s deadline to

respond is March 13, 2024, and United States District Judge Jane J. Boyle has

denied Keplar’s motion to extend his time to respond. See Dkt. No. 114. But Keplar

has moved to reconsider. See Dkt. Nos. 115 & 116.

Through his Motion for Sanctions, Keplar seeks sanctions against Google

under Federal Rules of Civil Procedure 37(a)(3)(C), 37(a)(5), 37(b)(1), 37(b)(2)(A),

and 37(b)(2)(C) and the Court’s inherent powers. See Dkt. No. 88 at 4-5.

Google, through its Cross-Motion for Sanctions, seeks sanctions against

Keplar under Federal Rule of Civil Procedure 37(b)(2). See Dkt. No. 101 at 12.

Legal Standards

I. Federal Rules of Civil Procedure 37(a) and 37(b)(1)

Federal Rule of Civil Procedure 37(b)(1) provides: “If the court where the

discovery is taken orders a deponent to be sworn or to answer a question and the

deponent fails to obey, the failure may be treated as contempt of court. If a

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deposition-related motion is transferred to the court where the action is pending,

and that court orders a deponent to be sworn or to answer a question and the

deponent fails to obey, the failure may be treated as contempt of either the court

where the discovery is taken or the court where the action is pending.” FED. R. CIV.

P. 37(b)(1).

But Rule 37(b)(1) applies only when a deponent fails to appear and be sworn

or when a court has already ordered the deponent to answer a question. See

CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 314, 323 n.11 (5th Cir. 2023) (noting

that “Rule 37(b)(1) [] govern[s] a deponent’s failure to be sworn or to answer a

question after being directed to do so by the court” (cleaned up)).

“‘Once a deponent has appeared for a deposition, Federal Rule of Civil

Procedure 37(a)(3)(B)(i) governs a motion to compel a deponent – whether a party or

a non-party – to answer a question.’ MetroPCS v. Thomas, 327 F.R.D. 600, 612

(N.D. Tex. 2018) (citing FED. R. CIV. P. 37(a)(2)(B)(i) (‘A party seeking discovery may

move for an order compelling an answer, designation, production, or inspection.

This motion may be made if: (i) a deponent fails to answer a question asked under

Rule 30 or 31....’)). Under Rule 37(a)(3)(B)(i), the Court may compel answers to

depositions questions where a deponent fails to answer a question asked under Rule

30. FED. R. CIV. P. 37(a)(3)(B)(i). And ‘an evasive or incomplete ... answer ... must be

treated as a failure to ... answer.’ FED. R. CIV. P. 37(a)(4).” VeroBlue Farms USA Inc.

v. Wulf, ___ F.R.D. ____, No. 3:19-cv-764-X, 2021 WL 5176839, at *11 (N.D. Tex.

Nov. 8, 2021) (cleaned up).

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Under Federal Rule of Civil Procedure 37(a)(2), such “[a] motion for an order

to a party must be made in the court where the action is pending,” while “[a] motion

for an order to a nonparty must be made in the court where the discovery is or will

be taken.” FED. R. CIV. P. 37(a)(2). And Federal Rule of Civil Procedure 37(a)(3)(C)

provides that, “[w]hen taking an oral deposition, the party asking a question may

complete or adjourn the examination before moving for an order” to compel an

answer under Rule 37(a)(3)(B)(i) to a question asked during a Rule 30 oral

deposition. FED. R. CIV. P. 37(a)(3)(C); see Jackson v. Wexford Health Sources, Inc.,

No. 3:20-CV-00900-DWD, 2023 WL 8020725, at *6 (S.D. Ill. Nov. 20, 2023),

reconsideration denied, No. 3:20-CV-900-DWD, 2024 WL 278362 (S.D. Ill. Jan. 25,

2024).

Also, in connection with a Rule 37(a)(3)(B)(i) motion to compel,

Rule 37(a)(5) provides, in pertinent part, that, on a Rule 37(a)(3)(B)(i)

motion to compel an answer from a deponent, including a non-party:

• “If the motion is granted ... the court must, after giving an

opportunity to be heard, require the ... deponent whose conduct

necessitated the motion, the ... attorney advising that conduct, or

both to pay the movant’s reasonable expenses incurred in making

the motion, including attorney’s fees. But the court must not

order this payment if: (i) the movant filed the motion before

attempting in good faith to obtain the disclosure or discovery

without court action; (ii) the opposing party’s nondisclosure,

response, or objection was substantially justified; or (iii) other

circumstances make an award of expenses unjust.”

• “If the motion is denied, the court may issue any protective order

authorized under Rule 26(c) and must, after giving an

opportunity to be heard, require the movant, the attorney filing

the motion, or both to pay the party or deponent who opposed the

motion its reasonable expenses incurred in opposing the motion,

including attorney’s fees. But the court must not order this

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payment if the motion was substantially justified or other

circumstances make an award of expenses unjust.”

• “If the motion is granted in part and denied in part, the court

may issue any protective order authorized under Rule 26© and

may, after giving an opportunity to be heard, apportion the

reasonable expenses for the motion.”

FED. R. CIV. P. 37(a)(5)(A)-(C).

VeroBlue, 2021 WL 5176839, at *12 (cleaned up).

II. Federal Rule of Civil Procedure 30

Depositions in this case were taken under Federal Rule of Civil Procedure 30,

which

governs the conduct or counsel, parties, and deponents in connection

with a party’s deposition as an initial matter, and Rule 30(c)(2) governs

objections to deposition questions and when a party must answer. See

FED. R. CIV. P. 30(c)(2). “An objection at the time of the examination –

whether to evidence, to a party’s conduct, to the officer’s qualifications,

to the manner of taking the deposition, or to any other aspect of the

deposition – must be noted on the record, but the examination still

proceeds; the testimony is taken subject to any objection.” Id. “An

objection must be stated concisely in a nonargumentative and

nonsuggestive manner.” Id. “An objection to a deponent’s competence –

or to the competence, relevance, or materiality of testimony – is not

waived by a failure to make the objection before or during the

deposition, unless the ground for it might have been corrected at that

time.” FED. R. CIV. P. 32(d)(3)(A). “An objection to an error or

irregularity at an oral examination is waived if: (i) it relates to the

manner of taking the deposition, the form of a question or answer, the

oath or affirmation, a party’s conduct, or other matters that might have

been corrected at that time; and (ii) it is not timely made during the

deposition.” FED. R. CIV. P. 32(d)(3)(B).

And Rule 30(c)(2) provides only three situations in which a

deponent may properly be instructed not to answer a question – “only

when necessary” (1) to preserve a privilege, (2) to enforce a limitation

previously ordered by a court, or (3) to present a motion under Federal

Rule of Civil Procedure 30(d)(3) to terminate or limit the deposition on

the ground that it is being conducted in bad faith or in a manner that

unreasonably annoys, embarrasses, or oppresses the deponent or party.

Id. (“A person may instruct a deponent not to answer only when

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necessary to preserve a privilege, to enforce a limitation ordered by the

court, or to present a motion under Rule 30(d)(3).”). “‘Directions to a

deponent not to answer a question can be even more disruptive than

objections.’” Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 591 n.7 (S.D.

Tex. 2011) (quoting FED. R. CIV. P. 30(d) 1993 Advisory Committee’s

Note).

“Because the plain language of Rule 30 is rather clear on what

types of objections counsel may make and when counsel may instruct a

deponent not to answer a question, courts have generally concluded

that it is improper to instruct a witness not to answer a question based

on a relevancy objection. However, if counsel’s questions go so far

beyond the realm of possible relevance where the deposition is being

conducted in an abusive manner (i.e., in bad faith or in a manner that

unreasonably annoys, embarrasses, or oppresses the deponent or

party), then it would be permissive to instruct a deponent not to answer

and move for a protective order under Rule 30(d)(3).” Id. at 591

(footnote and citations omitted).

“The only ground for [a Rule 30(d)(3)] motion to limit or

terminate the deposition is that it is being conducted in bad faith or in a

manner that unreasonably annoys, embarrasses, or oppresses the

deponent or party.” Mayberry v. Wal-Mart La., LLC, Civ. A. No.

14-cv-478, 2015 WL 420284, at *3 (W.D. La. Jan. 29, 2015).

And Rule 30(d)(3)(A) expressly limits the timing for a Rule

30(d)(3) motion: “At any time during a deposition, the deponent or a

party may move to terminate or limit it on the ground that it is being

conducted in bad faith or in a manner that unreasonably annoys,

embarrasses, or oppresses the deponent or party.” FED. R. CIV. P.

30(d)(3)(A); see Mashiri v. Ocwen Loan Servicing, LLC, No. 12cv2838-L

(MDD), 2014 WL 4608718, at *2 (S.D. Cal. Sept. 15, 2014) (“If counsel

for Plaintiff believed that counsel for Defendant was asking the same

question repeatedly in bad faith or to unreasonably annoy, embarrass

or oppress Plaintiff, counsel’s option was to move to terminate or limit

the deposition under Rule 30(d)(3). Plaintiff’s current motion to

terminate the deposition is untimely for that purpose as Rule 30(d)(3)

requires the motion be made during the deposition.”); see also Redwood

v. Dobson, 476 F.3d 462, 467-68 (7th Cir. 2007) (“Webber gave no

reason beyond his declaration that the questions were designed to

harass rather than obtain information – which may well have been

their point, but Fed. R. Civ. P. 30(d) specifies how harassment is to be

handled. Counsel for the witness may halt the deposition and apply for

a protective order, see Rule 30(d)(4), but must not instruct the witness

to remain silent. ‘Any objection during a deposition must be stated

concisely and in a non-argumentative and non-suggestive manner. A

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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).’ Fed. R. Civ. P. 30(d)(1). Webber

violated this rule repeatedly by telling Gerstein not to answer yet never

presenting a motion for a protective order. The provocation was clear,

but so was Webber’s violation.”).

Rule 30(d)(3) further provides that “[t]he motion may be filed in

the court where the action is pending or the deposition is being taken”;

that, “[i]f the objecting deponent or party so demands, the deposition

must be suspended for the time necessary to obtain an order”; that

“[t]he court may order that the deposition be terminated or may limit

its scope and manner as provided in [Federal Rule of Civil Procedure]

26(c)”; that, “[i]f terminated, the deposition may be resumed only by

order of the court where the action is pending”; and that Federal Rule of

Civil Procedure “37(a)(5) applies to the award of expenses” in

connection with a Rule 30(d)(3) motion. FED. R. CIV. P. 30(d)(3)(A)-(C).

VeroBlue, 2021 WL 5176839, at *10-*11 (cleaned up).

Federal Rule of Civil Procedure 30(d)(1) provides that “[u]nless otherwise

stipulated or ordered by the court, a deposition is limited to one day of 7 hours.” FED.

R. CIV. P. 30(d)(1); citations omitted).

“Before extending the duration of depositions, a court must be satisfied that

the moving party has shown ‘good cause.’ Similar to [Federal Rule of Civil

Procedure] 30(a)(2), Rule 30(d)(1) states that a court ‘must allow additional time

consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent....’

Courts have allowed parties to reopen depositions when new information comes to

light that creates the need for further questioning. ‘New information’ can include the

addition of new parties to the case, the addition of new allegations to the pleadings,

and the production of new documents. If a deposition is reopened because of newly

discovered information, the court should limit the deposition to questions related to

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this information.” VeroBlue, 2021 WL 5176839, at *10 (cleaned up and quoting FED.

R. CIV. P. 30(d)(1) and O’Connor v. Cory, No. 3:16-cv-1731-B, 2018 WL 5016291, at *2

(N.D. Tex. Oct. 16, 2018)).

And, in addition to Rule 30(d)(3),

Federal Rule of Civil Procedure 30(d)(2) provides that “[t]he court may

impose an appropriate sanction – including the reasonable expenses

and attorney’s fees incurred by any party – on a person who impedes,

delays, or frustrates the fair examination of the deponent.” FED. R. CIV.

P. 30(d)(2). “The meaning of ‘appropriate sanction’ in Rule 30(d)(2) has

been broadly interpreted as [t]he full scope of sanctions available under

Rule 30(d)(2) is not expressly described in the text of the rule. Many

courts have construed Rule 30(d)(2) to apply to circumstances where a

party’s conduct at a deposition warranted remedial action.” Murillo

Modular Group, Ltd. v. Sullivan, No. 3:13-cv-3020-M, 2016 WL

6139096, at *7 (N.D. Tex. Oct. 20, 2016) (internal quotation marks

omitted)

“The broad scope of appropriate sanctions under Rule 30(d)(2)

includes, where appropriate, an award of expenses associated with a

deposition’s continuation that is necessitated by a [person’s] conduct

that impedes, delays, or frustrates the fair examination of the

deponent.” Nieman v. Hale, No. 3:12-cv-2433-L-BN, 2014 WL 4375669,

at *5 (N.D. Tex. Sept. 4, 2014). The movant bears the burden on any

Rule 30(d)(2) motion that it makes. See Kleppinger v. Tex. Dep’t of

Transp., 283 F.R.D. 330, 333 (S.D. Tex. 2012).

VeroBlue, 2021 WL 5176839, at *12 (cleaned up).

III. Federal Rule of Civil Procedure 37(b)(2)

Federal Rule of Civil Procedure 37(b)(2)(A) provides that, “[i]f a party ... fails

to obey an order to provide or permit discovery, ... the court where the action is

pending may issue further just orders. They may include the following:

(i) directing that the matters embraced in the order or other

designated facts be taken as established for purposes of the

action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing

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designated claims or defenses, or from introducing designated

matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except

an order to submit to a physical or mental examination.

FED. R. CIV. P. 37(b)(2)(A)(i)-(vii).

Rule 37(b)(2)(C) further requires that, “[i]nstead of or in addition to the orders

[described under Rule 37(b)(2)(A)], the court must order the disobedient party, the

attorney advising that party, or both to pay the reasonable expenses, including

attorney’s fees, caused by the failure, unless the failure was substantially justified or

other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(b)(2)(C).

“A party’s discovery conduct is found to be ‘substantially justified’ under Rule

37 if it is a response to a ‘genuine dispute, or if reasonable people could differ as to

the appropriateness of the contested action.’’” S.E.C. v. Kiselak Capital Grp., LLC,

No. 4:09-cv-256-A, 2012 WL 369450, at *5 (N.D. Tex. Feb. 3, 2012) (quoting Devaney

v. Continental Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993) (in turn quoting

Pierce v. Underwood, 487 U.S. 552, 565 (1988))). “The burden rests on the party who

failed to comply with the order to show that an award of attorney’s fees would be

unjust or that the opposing party’s position was substantially justified.” Id. at *3

(footnote omitted).

The undersigned has authority to enter a nondispositive order granting

attorneys’ fees or other nondispositive sanctions under Federal Rule of Civil

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Procedure 37(b) or denying a request for what might be considered a dispositive

sanction. See 28 U.S.C. § 636(b); Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013,

1016-17 (5th Cir. Unit A 1981) (per curiam) (a magistrate judge has authority to

enter a nondispositive order granting attorneys’ fees as a sanction under Federal

Rule of Civil Procedure 37); Siegel v. Compass Bank, No. 3:18-cv-1023-X, 2021 WL

4498914, at *1 (N.D. Tex. Jan. 11, 2021) (“To determine whether a referred motion

for sanctions is dispositive or non-dispositive, the sanction chosen by the magistrate

judge, rather than the sanction sought by the party, governs the determination of

whether Rule 72(a) or 72(b) applies. To allow otherwise would permit the party

seeking sanctions to engage in a game of labels that would improperly dictate the

standard of review.” (cleaned up)); Brown v. Bridges, No. 3:12-cv-4947-P, 2015 WL

410062, at *1-*4 (N.D. Tex. Jan. 30, 2015) (explaining that, when a district judge

refers a motion for sanctions to a magistrate judge, the sanction chosen by the

magistrate judge, rather than the sanction sought by the party, governs the

determination of whether Federal Rule of Civil Procedure 72(a) or 72(b) applies and

that, when the magistrate judge finds that dismissal or another sanction disposing of

a claim or defense is unwarranted, the motions should be characterized as

non-dispositive and may be ruled on by the magistrate judge) (followed in Green

Hills Dev. Co., LLC v. Credit Union Liquidity Servs., LLC, No. 3:11-cv-1885-L-BN,

Dkt. No. 373 at 2 (N.D. Tex. Dec. 1, 2016)).

Rule 37(b)(2) “empowers the courts to impose sanctions for failures to obey

discovery orders. In addition to a broad range of sanctions, including contempt, Fed.

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R. Civ. P. 37(b)(2) authorizes the court to impose a concurrent sanction of reasonable

expenses, including attorney’s fees, caused by the failure to obey a discovery order.”

Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012)

(internal quotation marks omitted); see also Chilcutt v. United States, 4 F.3d 1313,

1322 n.23 (5th Cir. 1993) (“Rule 37(b) clearly indicates that district courts have

authority to grant a broad spectrum of sanctions.”).

“The district court has broad discretion under Rule 37(b) to fashion remedies

suited to the misconduct.” Smith, 685 F.3d at 488 (internal quotation marks

omitted). “This discretion, however, is limited” based on the type of sanctions

imposed. Id.

The United States Court of Appeals for the Fifth Circuit has explained that its

“caselaw imposes a heighted standard for litigation-ending sanctions (sometimes

called ‘death penalty’ sanctions). For a lesser sanction, we broadly require the

district court to determine the sanctions are ‘just’ and ‘related to the particular

‘claim’ which was at issue in the order to provide discovery.’” Law Funder, L.L.C. v.

Munoz, 924 F.3d 753, 758 (5th Cir. 2019) (cleaned up).

The sanction imposed should be the least severe sanction adequate to achieve

the proper functions of Rule 37(b)(2) under the particular circumstances. See Smith,

685 F.3d at 488-90.

And the Fifth Circuit recently repeated its guidance that, “to levy a

litigation-ending sanction for a discovery violation, the court must make four

findings. First, the violation reflects bad faith or willfulness. Second, the client, not

-16-

counsel, is responsible for the violation. Third, the violation substantially prejudiced

the opposing party. Fourth, a lesser sanction would not substantially achieve the

desired deterrent effect.” Vikas WSP, Ltd. v. Econ. Mud Prod. Co., 23 F.4th 442, 454

(5th Cir. 2022) (cleaned up); accord Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300,

1304 (5th Cir. 1988) (“We have repeatedly emphasized that a dismissal with

prejudice is a ‘draconian’ remedy, or a ‘remedy of the last resort,’ to be employed only

when the failure to comply with the court’s order results from wilfullness or bad

faith rather than from an inability to comply. Nevertheless, deliberate, repeated

refusals to obey discovery orders have been held to warrant the use of this ultimate

sanction.” (footnote omitted)); Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514

(5th Cir. 1985) (“[D]ismissal is authorized only when the failure to comply with the

court’s order results from willfulness or bad faith, and not from the inability to

comply.”).

But “[l]esser sanctions do not require a finding of willfulness.” Smith, 685 F.3d

at 488. “Of course, the flagrancy of a party’s behavior must be directly proportionate

to the severity of the sanction imposed,” but “the lack of willful, contumacious, or

prolonged misconduct [does not] prohibit[] all sanctions.” Chilcutt, 4 F.3d at 1322

n.23. Even where a party was “unable to comply with the discovery requests, the

district court still ha[s] broad discretion to mete out a lesser sanction than

dismissal.” Id. (emphasis omitted).

That is because “the type of conduct displayed by a party had no bearing on

whether sanctions should be imposed, but only on the type of sanctions imposed,”

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and “[t]he willfulness or good faith of [a party], can hardly affect the fact of

noncompliance and [is] relevant only to the path which the District Court might

follow in dealing with [the party’s] failure to comply.” Id. (internal quotation marks

and emphasis omitted).

Rule 37(b) “is designed to empower the court to compel production of evidence

by the imposition of reasonable sanctions.” Dorsey v. Acad. Moving & Storage, Inc.,

423 F.2d 858, 860 (5th Cir. 1970). “Sanctions under Rule 37 serve the dual function

of reimbursing the moving party and deterring the violator of the discovery orders

(as well as other potential violators).” Day v. Allstate Ins. Co., 788 F.2d 1110, 1114

(5th Cir. 1986).

And “[a]n order is not always a prerequisite to the imposition of Rule 37(b)(2)

sanctions, which can be imposed even without an existing motion to compel. See

McLeod, Alexander, Powel & Apfel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.

1990). The United States Court of Appeals for the Fifth Circuit has approvingly cited

another court’s explanation that, ‘[i]n general, where a party has received adequate

notice that certain discovery proceedings are to occur by a specific date, and that

party fails to comply, a court may impose sanctions without a formal motion to

compel the discovery from the opposing party.’ Id. (internal quotation marks

omitted).” Fu v. Chin, No. 3:18-cv-2066-N-BN, 2020 WL 7049161, at *4 (N.D. Tex.

Oct. 23, 2020), rep. & rec. adopted, 2020 WL 7047053 (N.D. Tex. Dec. 1, 2020).

IV. The Court’s inherent powers

“A district court has the inherent authority to impose sanctions in order to

-18-

control the litigation before it.” Positive Software Solutions, Inc. v. New Century

Mortg. Corp., 619 F.3d 458, 460 (5th Cir. 2010) (cleaned up). This includes “the

power to levy sanctions in response to abusive litigation practices.” In re Stone, 986

F.2d 898, 902 (5th Cir. 1993). Accordingly, “[a] district court has inherent power to

sanction attorneys for bad faith conduct in litigation.” Crowe v. Smith, 261 F.3d 558,

563 (5th Cir. 2001).

But these inherent powers “ought to be exercised with great caution” and are

reserved for “conduct which abuses the judicial process.” Chambers v. NASCO, Inc.,

501 U.S. 32, 43, 44-45 (1991) (cleaned up). “The threshold for the use of the inherent

power sanction is high.” Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc.,

86 F.3d 464, 467 (5th Cir. 1996).

Although “the inherent power extends to a full range of litigation abuses,” the

United States Supreme Court has cautioned that, “[b]ecause of their very potency,

inherent powers must be exercised with restraint and discretion.” Chambers, 501

U.S. at 44, 46. “A primary aspect of that discretion is the ability to fashion an

appropriate sanction for conduct which abuses the judicial process.” Id. at 44-45.

And courts may generally turn to their inherent powers only if “there is no

statute or rule that adequately addresses the conduct.” Coastal Bridge Co., L.L.C. v.

Heatec, Inc., 833 F. App’x 565, 573 (5th Cir. 2020); see Chambers, 501 U.S. at 50

(“Furthermore, when there is bad-faith conduct in the course of litigation that could

be adequately sanctioned under the Rules, the court ordinarily should rely on the

Rules rather than the inherent power.”); Carroll v. Jaques Admiralty L. Firm, P.C.,

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110 F.3d 290, 292 (5th Cir. 1997) (“When a party’s deplorable conduct is not

effectively sanctionable pursuant to an existing rule or statute, it is appropriate for a

district court to rely on its inherent power to impose sanctions.”).

But “a federal court [is not] forbidden to sanction bad-faith conduct by means

of the inherent power simply because that conduct could also be sanctioned under

the statute or the Rules,” and, “if in the informed discretion of the court, neither the

statute nor the Rules are up to the task, the court may safely rely on its inherent

power.” Chambers, 501 U.S. at 50.

The Fifth Circuit has generally (outside the spoliation context) required a

finding of clear and convincing proof of bad faith to impose sanctions under a district

court’s inherent powers. See, e.g., Vikas WSP, Ltd. v. Econ. Mud Prod. Co., 23 F.4th

442, 455 (5th Cir. 2022). And “[a] court may assess attorney’s fees under its inherent

powers when a party has acted in bad faith, vexatiously, wantonly, or for oppressive

reasons” but “must make a specific finding that the sanctioned party acted in bad

faith in order to impose such sanctions.” Matta v. May, 118 F.3d 410, 416 (5th Cir.

1997).

And any sanctions ordered should be “the least severe sanctions adequate to

accomplish the purpose for which the sanction was imposed.” Topalian v. Ehrman, 3

F.3d 931, 938 (5th Cir. 1993); accord Toon v. Wackenhut Corr. Corp., 250 F.3d 950,

952–53 (5th Cir. 2001).

-20-

Analysis

I. This is not how litigation is meant to go.

Counsel in this case lately “have had a hard time getting along.” Orchestrate

HR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 511 (N.D. Tex. 2016) (cleaned up),

objections overruled sub nom., No. 3:13-cv-2110-KS-BH, 2016 WL 5942223 (N.D. Tex.

Oct. 13, 2016).

At the oral argument on Keplar’s Motion to Compel, the Court said something

to the same effect as this apt passage that another judge in this district once wrote:

“[T]he Court’s role is to determine whether the movants are entitled to the discovery

they seek under the relevant Federal Rules of Civil Procedure and precedent.

Although Plaintiff and Defendants spent the better part of their briefs and their time

at the hearing arguing over their respective difficulties in getting opposing counsel

to cooperate, the Court would prefer to focus on the merits of the discovery dispute

rather than the difficulties counsel have in dealing with one another.” M3Girl

Designs, LLC v. Blue Brownies, LLC, No. 3:09-cv-2390-F, 2011 WL 13128965, at *2

(N.D. Tex. Aug. 31, 2011). And that is what the Court did in resolving Keplar’s

Motion to Compel. See Dkt. No. 76.

Now, having resolved Keplar’s discovery motion and a follow-on dispute, the

Court is presented with cross-motions for sanctions.

Neither party suggests that the other counsel’s “conduct in the case so far is so

egregious that the case should be resolved by sanctions disposing of the case.” Brown

v. Bridges, No. 12-cv-4947-P, 2015 WL 410062, at *8 (N.D. Tex. Jan. 30, 2015). And,

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yet, the rhetoric throughout the briefing on these motions brings “‘much heat but

little light to the court’s task of deciding discovery disputes.’” Id. (quoting Dondi

Properties Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 289 (N.D. Tex.

1988)).

As the Court has noted before, “[a]d hominem attacks and efforts to press

collateral proceedings on sanctions … – except in the most exceptional instances in

which no other approach is appropriate or up to the task – only serve to multiply and

delay proceedings and fly in the face of the court’s and the Federal Rules’ preference

for deciding disputes on the merits.” Areizaga v. ADW Corp., No. 3:14-cv-2899-B,

2016 WL 3511788, at *9 (N.D. Tex. June 7, 2016), rep & rec. adopted, 2016 WL

3419097 (N.D. Tex. June 22, 2016).

But the parties insist that the Court is facing one of those exceptional

instances. Counsel does so while accusing opposing counsel of

• filing a “motion for sanctions [that] is nothing other than another

blatant attempt to harass and bully opposing counsel and witnesses

because he is unhappy with the testimony and evidence gathered to

date in this case”;

• engaging “in a deliberate maneuver calculated to unnecessarily

increase the costs of litigation in this matter” and “and require Google

to waste resources responding positions for which he knows there is no

factual basis”;

• being “dishonest” in “suggest[ing] and demand[ing] that he is permitted

to seek information about all Level 8s (of which there would be

subordinates and supervisors) in all verticals throughout Google

Cloud-including the retail, healthcare, telecommunications and gaming,

etc.)”;

• “seeking the depositions” at issue based on “his true motivation” to

impose on Google “further and expansive litigation”;

• being “absolutely hypocritical … to suggest, in a lecturing manner [],

that counsel need to trust each other”;

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• “not necessarily seeking [restroom breaks] in good faith”;

• “simply lying when it claims attorney’s eyes-only documents were

discussed during Ms. Piazza’s deposition with Plaintiff present in the

room”;

• “offer[ing] a false and puerile insinuation that Plaintiff’s counsel, in

referring to ‘next steps’ on a particular occasion, meant anything other

than steps to be taken in this action assuming the lack of mutual

acceptance of a mediator’s proposal pending at the time”;

• filing an “intellectually dishonest” response that “lacks maturity”; and

• “wrongfully and boldly accus[ing] Defendant’s counsel of lying” in an

“assertion [that] is both ludicrous and offensive, as in reality, it is

Plaintiff’s counsel who is making false statements and can be

characterized as the one being untruthful.”

See Dkt Nos. 101, 103, 104, & 117.

Some, but not all, of this is delivered in footnotes. Leaving aside citational

footnotes (as opposed to substantive footnotes), the trouble with footnotes is that

they facilitate, if not encourage, attorneys to drop in material that they did not –

and, in some instances, would not ever – include in the body of a motion or brief.

This includes points that counsel may not feel comfortable making in the main

text or, other times, asides and tangential observations.

And placing arguments in footnotes “may be considered a way to squeeze more

text in” and “to avoid compliance with the page limitation.” Merrill Lynch, Pierce,

Fenner & Smith, P.C. v. Greystone Servicing Corp., No. 3:06-cv-0575-P, 2007 WL

2729935, at *13 n.7 (N.D. Tex. Sept. 18, 2007); India Brewing, Inc. v. Miller Brewing

Co., 237 F.R.D. 190, 195 (E.D. Wis. 2006)

But, as counsel has done here, attorneys may also fill footnotes with

substantive arguments, including points that the party may consider important or

significant. Yet the Court is entitled to expect that, if that is so, the material will be

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found in the brief’s main text or body. And, so, some judges have “cautioned litigants

against the practice of placing substantive arguments solely in footnotes” and

warned that substantive arguments “placed in footnotes may be disregarded by the

court.” India Brewing, 237 F.R.D. at 195; Jamison v. Purdue Pharma Co., 251 F.

Supp. 2d 1315, 1323 n.7 (S.D. Miss. 2003).

But the Court has reviewed everything that the parties have submitted with

their competing motions for sanctions.

Under the circumstances, the Court will not dispose of either motion based on

any counsel’s failing to properly confer with opposing counsel before filing or failing

to timely file an appendix that complies with the local rules. See VeroBlue, 2021 WL

5176839, at *25. And “[a]ll counsel are reminded of their obligation to remain civil

and avoid ad hominem attacks against opposing counsel – no matter how frustrated

they are by the situation.” Lewis v. La. State Univ., No. CV 21-198-SM-RLB, 2022

WL 5013085, at *5 (M.D. La. Oct. 4, 2022).

But it is time to resolve these matters and get this case past the discovery

stage.

And, so, the Court now turns to what each party alleges.

II. The conduct that the parties allege the other engaged in do not warrant all the

sanctions they seek.

Keplar asserts that Google’s sanctionable conduct includes the following:

• Google delayed in complying with the Court’s January 9, 2024 order on

Keplar’s Motion to Compel;

• Google’s counsel unnecessarily precipitated the emergency telephone

conference on February 14, 2024;

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• On February 14, 2024 at approximately 3:45 p.m. Central Time, when

approximately two-and-one-half hours of the maximum seven hours

remained available to complete the deposition of Mr. Moyer, Google’s

counsel for the first time during the deposition, advised Keplar’s

counsel and the court reporter and videographer that Mr. Moyer could

not complete his deposition on February 14, 2024 but would leave the

deposition at 4:00 p.m. Central Time – which he did;

• Google’s counsel knew of Mr. Moyer’s unavailability for deposition after

4:00 p.m. Central time at the time of the emergency telephone

conference on February 14, 2024 but did not advise the Court;

• Google’s counsel made repeated objections during Mr. Moyer’s

deposition that did not comply Federal Rule of Civil Procedure 30(c)(2),

including objecting to leading questions despite Mr. Moyer’s being an

adverse witness as to Keplar;

• Google’s counsel, despite the lack of any claim of privilege, instructed

Mr. Moyer not to answer questions calculated to determine whether he

remains an employee of Google entitled to engaged in privileged

communications as such with Google’s counsel related to his deposition

before or during it;

• Google failed to produce documents for all directors within Google

within Defendant’s Google Cloud financial services industry;

• Google’s corporate representative witness, Yolande Piazza, refused in

her February 15, 2024 deposition to offer testimony beyond the limited

group of directors as to which documents were offered; and

• Google failed to produce documents, and Ms. Piazza also refused to

testify, about information separately required to be provided by the

January 9, 2024 order about Level 8 directors within Defendant’s

Google Cloud organization not limited to the FSI vertical.

Dkt. No. 88 at 1-3; Dkt. No. 89 at 1-4; Dkt. No. 92 at 1-2; Dkt. No. 103 at 1-9.

Keplar asserts that Google’s conduct had the following adverse effects on

Keplar and his counsel:

• The need to file Keplar’s Emergency Motion to Enforce Order on Motion

to Compel and Extend Discovery Period as Necessary, and to Compel

Responses to Interrogatories, Requests for Admission and Document

Requests [Dkt. No. 79] and for the Court to enter a February 8, 2024

order [Dkt. No. 81] and for the parties to file the February 8, 2024 Joint

Notice of agreement [Dkt. No. 83];

• A need to obtain a new court reporter and videographer for the

continued deposition of Mr. Moyer and consequent potential additional

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cost beyond that which would have been incurred to complete the

deposition on February 14, 2024;

• Loss of final preparation time for the corporate representative

deposition otherwise built into the schedule of depositions referred to in

the parties’ February 8, 2024 Joint Notice of agreement [Dkt. No. 83];

• A loss of time to review written discovery responses made and

documents produced in advance of the corporate representative

deposition as sought in Keplar’s emergency motion [Dkt. No. 79] and

agreed by Google in the parties’ February 8, 2024 Joint Notice of

agreement [Dkt. No. 83]; and

• A risk of improperly coached or altered testimony of Mr. Moyer in his

continued deposition by the provision an opportunity by Google’s

counsel to advise him at length concerning his deposition in the middle

of it, an opportunity which would not have existed absent the deposition

continuing beyond February 14, 2024.

Dkt. No. 88 at 2-4; Dkt. No. 89 at 4.

In his opening Motion for Sanctions, Keplar asks the Court to, as sanctions

against Google,

(a) “preclude Mr. Moyer from modifying his deposition testimony given on

February 14, 2024 by errata sheet or otherwise”;

(b) “require payment by Defendant of the cost of a second day of his

deposition”;

(c) “preclude use of deposition testimony of Mr. Moyer by Defendant for

any purpose”;

(d) “award Plaintiff’s attorney’s fees against Defendant, its counsel or both,

for preparing, filing and prosecuting this motion for sanctions”;

(e) “award monetary sanctions against Defendant, its counsel or both, as

appropriate to deter such conduct of Defendant and its counsel”;

(f) “compel[] Mr. Moyer to finally answer questions about his employment

status with Defendant”; and

(g) “enforce the January 9, 2024 order, the parties’ agreement reflected in

their February 8, 2024 notice of agreement, and Plaintiff’s notice of

corporate deposition, by requiring production of documents and

testimony by Ms. Piazza on all directors as to whom documents and

information were required by one or more of the January 9, 2024 order,

February 8, 2024 notice of agreement and Plaintiff’s notice of corporate

representation deposition, i.e., all directors within the FSI vertical and

all Level 8 directors in Defendant’s Google Cloud organization whether

in FSI vertical or otherwise.”

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Dkt. No. 88 at 4; Dkt. No. 89 at 2, 3-4.

And, in his reply, Keplar explains that he is asking the Court to, as sanctions

against Google, enter

(a) “an order precluding reliance on the deposition of Mr. Moyer at trial or

testimony by him”;

(b) “an order requiring Mr. Moyer to submit to a brief continued deposition

to answer questions regarding his employment status, and questions

about his communication with counsel to Defendant if the truthful

answer to the first question is that an agreement as to his separation

from Defendant had been reached prior to his deposition such that Mr.

Moyer could not be regarded as a continuing employee of Defendant at

the time of his deposition”;

(c) “an order permitting Plaintiff to further question Mr. Moyer for a period

of time consistent with the number and impropriety of many of

Defendant’s objections to Plaintiff’s questions to him”;

(d) “an order requiring Ms. Piazza to submit to further questioning

concerning directors in Defendant’s FSI vertical identified by Mr.

Moyer”;

(e) “an order requiring Ms. Piazza to answer questions about Level 8

directors in Defendant’s Google Cloud organization not limited to FSI

directors”;

(f) “an order requiring Defendant to produce requested documents as to all

directors in Defendant’s FSI vertical identified by Mr. Moyer”; and

(g) “an order requiring Defendant to answer Plaintiff’s interrogatories

without limitation.”

Dkt. No. 103 at 10.

Google, in turn, asserts that Keplar’s counsel’s sanctionable conduct during

the February 14 and 15, 2024 depositions includes the following:

• Keplar’s counsel interrupted witnesses and prohibit them from

finishing answers, in violation of the protective order in the Court’s

January 9, 2024 Electronic Order [Dkt. No. 76];

• Keplar’s counsel refused reasonably-requested breaks during

deposition, in violation of the protective order in the Court’s January 9,

2024 Electronic Order [Dkt. No. 76];

• Keplar’s counsel violated the protective order by discussing “Attorneys

-27-

Eyes Only” (AEO)-designated documents in front of Keplar without first

removing him from the room in which Keplar’s counsel was examining

the witness, in violation of the protective order in the Court’s January

9, 2024 Electronic Order [Dkt. No. 76]; and

• Keplar’s counsel attempted to engage in ex-parte communications with

Mr. Moyer during his deposition by asking substantive questions of Mr.

Moyer about the case during a restroom break and outside the presence

of Google’s attorneys on Zoom.

Dkt. No. 101 at 13-18; Dkt. No. 117 at 3-4.

As sanctions against Keplar and his counsel, Google asks the Court to “issue

an order requiring the following:

(a) That Plaintiff and/or his counsel be required to pay of Google’s

attorneys’ fees and costs incurred with responding to his Motion for

Sanctions, with Brief, Supplement to Motion for Sanctions, With

Request for Expedited Consideration, and Exhibits to Plaintiff’s Motion

for Sanctions and Supplement (“Motion”) (DKT. 88, 89, 92);

(b) That Plaintiff and/or his counsel be required to pay of Google’s

attorneys’ fees and costs incurred with filing its Cross Motion for

Sanctions;

(c) That Plaintiff be prevented from taking any further depositions in this

action as requested in his Motion for Sanctions;

(d) That if any further depositions in this action are ordered, that they be

taken at the law offices of FordHarrison LLP, 1601 Elm Street, Suite

4450, Dallas, Texas 75201 and that Plaintiff be required to pay for an

attorney-mediator (or other Court-designated intermediary) to attend

such deposition to confirm his compliance with Magistrate Judge

Horan’s protective order; and

(e) The denial of all relief sought by Plaintiff in his Motion for Sanctions.”

Dkt. No. 101 at 18.

The Court will address each alleged instance or category of sanctionable

conduct in turn.

A. Google’s delay in complying with the discovery order and unnecessarily

precipitating the February 14, 2024 emergency telephone conference

Keplar offers Google’s alleged delay in complying with the Court’s January 9,

-28-

2024 Electronic Order and allegedly unnecessarily precipitating the February 14,

2024 emergency telephone conference as background, but he does not raise these

matters as “instances of discovery misconduct by Defendant.” Dkt. No. 103 at 1 &

n.1. But the Court will further address below the extent to which Google has acted

on what were mistaken interpretations of the Court’s January 9, 2024 Electronic

Order [Dkt. No. 76].

B. Failing to complete Mr. Moyer’s deposition on February 14, 2024

During the February 14, 2024 emergency telephone conference, the Court did

not specifically order that Mr. Moyer’s deposition would happen only on February 14.

Rather, the Court specified that the deposition would be for up to 7 hours, because

its length was the matter of contention during the emergency telephone conference.

It appears from the record that Google’s counsel should have let Keplar’s

counsel know sooner about Mr. Moyer’s hard stop for the day that would fall less

than 7 hours into his deposition. But the Court finds that this was not sanctionable

conduct under Rule 37(b)(2) or the Court’s inherent powers. And there is no basis to

order Google to pay for the expenses incurred from the unexpected second day of Mr.

Moyer’s testimony because the parties had already scheduled Keplar’s deposition of

Google’s Rule 30(b)(6) corporate representative to take place on February 15, 2024.

Neither is there any evidence on this record of any improper coaching or

communications by Google’s counsel with Mr. Moyer.

C. Google’s counsel’s objections during Mr. Moyer’s deposition

Courts have observed that “constant interruptions and lengthy speaking

-29-

objections violate Rule 30(c)(2)’s requirement that objections be ‘concise,’

‘nonargumentative,’ and ‘nonsuggestive.’” Rex Real Est. I, L.P. v. Rex Real Est. Exch.,

Inc., No. A-19-CV-696-RP, 2020 WL 710201, at *3 (W.D. Tex. Feb. 12, 2020) (quoting

FED. R. CIV. P. 30(c)(2)); see also Pinson v. N. Tool & Equip. Co., No.

3:10CV621-TSL-MTP, 2012 WL 5286933, at *1 (S.D. Miss. Oct. 24, 2012)

(“Objections should generally be limited to the form of a question or the

responsiveness of an answer.” (citing FED. R. CIV. P. 30(d) Advisory Committee’s

Note, 1993 amendments and In re Neurontin Antitrust Litig., MDL Docket No. 1479,

Master Civil Action No. 02–1390(FSH), 2011 WL 253434, at *12 (D.N.J. Jan. 25,

2011) (observing that ‘objections should be concise, non-argumentative, and

non-suggestive, and hence ... counsel should not (1) make speaking, coaching or

suggestive objections; (2) coach or change the witness’s own words to form a legally

convenient record; (3) frustrate or impede the fair examination of a deponent during

the deposition by, for example, making constant objections and unnecessary

remarks; (4) make speaking objections such as ‘if you remember,’ ‘if you know,’ ‘don’t

guess,’ ‘you’ve answered the question,’ and ‘do you understand the question’; or (5)

state that counsel does not understand the question’)”).

Some of Google’s counsel’s objections do not hold up well against this

standard. See Dkt. No. 105-1. But Keplar’s counsel did not timely move under Rule

30(d)(3).

And the Court finds that Google’s counsel’s objections did not reach the point,

individually or cumulatively, of impeding delaying, or frustrating the fair

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examination of Mr. Moyer and so are not sanctionable under Rule 30(d)(2).

And, in any event, the Court finds no basis on this record for, as Keplar

requests, disallowing any use by Google of Mr. Moyer’s deposition as a sanction for

allegedly excessive speaking objections.

D. Google’s counsel’s instructing Mr. Moyer not to answer

The deposition excerpt that Keplar provides does not reflect, as Keplar

asserts, that Mr. Moyer “refused to answer questions about his employment status”

but rather that, on February 15, 2024, Google’s counsel instructed Mr. Moyer not to

answer a question whether “Google [has] communicated to you that your

employment is ending or has ended,” while making clear that Google’s counsel would

not instruct Mr. Moyer not to answer a question as to whether he is currently

employed at Google – just as Mr. Moyer had answered on February 14, 2024. See

Dkt. No. 92 at 1; 92-1.

Keplar’s counsel did not do so, and the Court finds no basis to order additional

deposition questioning for Keplar’s counsel to do so at this point.

And the only evidence on this record is that Mr. Moyer was an employee

through February 14, 2024 (and apparently February 15, 2024 as well). And nothing

suggests that Mr. Moyer’s conversations with Google’s counsel before and during his

deposition were not subject to attorney-client privilege – regardless of whether or not

Google maintained his employment relationship for the purpose of maintaining

privilege.

The Court finds no grounds for any sanctions as to these allegations.

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E. Google’s failing to produce documents for, and offer corporate

representative testimony about, all directors within Google Cloud’s

Financial Services Industry vertical

The Court has carefully compared its January 9, 2024 Electronic Order [Dkt.

No. 76] with the briefing and deposition excerpts relevant to these allegations. The

bottom line is that the Court ordered “that Google must present a corporate

representative to testify regarding the ages, qualifications, and circumstances of

separation, reduction in scope of duties, demotion, or replacement of any employees

of Google, including Mr. Fernandez, who were employed as directors (the same level

as Keplar) concurrently with Keplar in the Financial Services Industry vertical of

the Google Cloud sales organization of which Keplar was a part.” Dkt. No. 76.

That is, the required testimony is limited to directors at the same level as

Keplar. And Mr. Moyer’s testimony makes clear that those are directors in an “M1”

position. And, so, the Court finds no violation of its January 9, 2024 Electronic

Order.

As for Keplar’s document requests and interrogatories, Google did not, as

Keplar observes, seek a protective order limiting the scope its responses and

answers. And the Court’s January 9, 2024 Electronic Order did not address these

written discovery requests because they were not before the Court on the Motion to

Compel.

But Keplar’s emergency motion [Dkt. No. 79] did address them. And the

parties then told the Court that there was no need for the Court to resolve that

motion based on an agreement that “Google will supplement to the extent necessary

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and consistent with Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76] its

responses to Plaintiff’s First Interrogatories, Requests for Admission and Document

Requests and will provide responsive documents to the extent necessary and

consistent with Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76].” Dkt.

No. 83.

And, on the record before the Court, that appears to be what Google has done.

And, so, the Court finds no basis to enter either a sanctions order or an order

compelling further answers and production under Federal Rules of Civil Procedure

37(a)(3)(B)(iii)-(iv) based on these allegations.

F. Google’s failing to produce documents for, and offer corporate

representative testimony about, about Level 8 directors within the

Google Cloud organization not limited to the FSI vertical

The same cannot be said as to the second Rule 30(b)(6) topic on which the

Court ordered Google to present corporate representative testimony.

Google apparently read the Court’s ordering “that Google must present a

corporate representative to testify … regarding the identity and circumstances of

separation, if any, of so-called Level 8 employees who were employed as directors

(the same level as Keplar) concurrently with Keplar in the Google Cloud sales

organization of which Keplar was a part” as ordering only “that Google must present

a corporate representative to testify … regarding the identity and circumstances of

separation, if any, of so-called Level 8 employees who were employed as directors

(the same level as Keplar) concurrently with Keplar in the Financial Services

Industry vertical of the Google Cloud sales organization of which Keplar was a part.”

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But the Court included the limitation “[in] the Financial Services Industry

vertical” only in the first Rule 30(b)(6) topic that the Court ordered on Keplar’s

Motion to Compel: “regarding the ages, qualifications, and circumstances of

separation, reduction in scope of duties, demotion, or replacement of any employees

of Google, including Mr. Fernandez, who were employed as directors (the same level

as Keplar) concurrently with Keplar in the Financial Services Industry vertical of

the Google Cloud sales organization of which Keplar was a part.”

The presence of that phrase in the first topic and not in the second reflects

that the Court intended the limitation to apply to only the first topic. And that is

what the Court ordered, notwithstanding Google’s efforts now to narrow the Court’s

ordering language by pointing to the Court’s more general statement regarding

comparators and Google’s resulting limitation of Ms. Piazza’s corporate

representative testimony. See Dkt. No. 92-2.

Google’s counsel may have thought that the Court should have ruled more

narrowly in deciding Keplar’s Motion to Compel – but, if so, those thoughts did not

lead Google to either timely file Federal Rule of Civil Procedure 72(a) objections with

Judge Boyle or seek clarification from the Court in advance of preparing and

presenting the required corporate representative for deposition.

And Google cannot, based on the agreement reflected in the parties’ Joint

Notice [Dkt. No. 83], correspondingly limit its interrogatory answers and document

production when Google did not timely move for a protective order, Keplar moved to

compel, and the parties agreed that “Google will supplement to the extent necessary

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and consistent with Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76] its

responses to Plaintiff’s First Interrogatories, Requests for Admission and Document

Requests and will provide responsive documents to the extent necessary and

consistent with Magistrate Judge Horan’s January 9, 2024 Order [DKT. 76].” Dkt.

No. 83.

Google’s violation of the Court’s January 9, 2024 Electronic Order [Dkt. No.

76] in Ms. Piazza’s corporate representative deposition testimony and its document

production and interrogatory answers warrant a sanctions order under Rule 37(b)(2)

and an order compelling supplemental answers and document production under

Federal Rules of Civil Procedure 37(a)(3)(B)(iii)-(iv) based on these allegations.

G. Keplar’s counsel’s alleged misconduct during depositions

As for Google’s Cross-Motion, Google’s request that the Court should deny

Keplar’s Motion for Sanctions because Google asserts that Keplar’s attorney engaged

in sanctionable conduct in violation of another portion of the January 9, 2024

Electronic Order [Dkt. No. 76] reflects a logical disconnect that the Court cannot

accept. So, too, the requested relief that Keplar should be ordered to pay Google’s

fees for responding to Keplar’s Motion for Sanctions – as opposed to any expenses

incurred for the Cross-Motion for Sanctions raising Keplar’s counsel’s alleged

sanctionable conduct.

After reviewing the deposition transcripts, the Court is not persuaded that,

during the February 14 and 15, 2024 depositions, Keplar’s counsel violated the

protective order provision requiring that he “must allow the witness to fully complete

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his or her answer to any question asked without interruption or other misconduct to

impede the answer.” Dkt. No. 76. Neither is it clear that Keplar’s counsel violated

the provision that “any person prohibited from reviewing a document marked

‘Attorneys Eyes Only’ must leave the deposition before the document is revealed,

before questions about the document are asked, and before the document is

introduced as an exhibit.” Id. The instance to which Google points suggests that, if

anything, Keplar’s counsel was insufficiently attentive to whether he was asking

questions about an AEO-restricted document with Mr. Keplar present.

Keplar’s counsel likewise acknowledged on the record at the deposition that he

was determined to begin asking questions at the time Google’s counsel had said she

would return from a restroom break. The Court cannot read the record as supporting

allegations that Keplar’s counsel intended to engage in ex parte communications

with Mr. Moyer. Rather, this appears to fall in line with Google’s complaints

regarding Keplar’s counsel’s agreeing to restroom break. In short, counsel need to

show each other patience, grace, and courtesy to an extent that one largely looks for

in vain in these deposition transcripts.

But, even to the extent that Keplar’s counsel may have violated provisions of

the January 9, 2024 protective order, as with Google’s requests for sanctions denying

Keplar’s sanctions motion or requiring him to pay its fees for responding to that

motion, the Court finds no basis to order as a sanction that Keplar be prevented from

taking any further depositions in this action as he has requested in his Motion for

Sanctions.

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III. A Court-monitored and limited continued corporate representative deposition

is the least severe and most appropriate sanction.

The Court turns, then, to what are appropriate sanctions here.

Keplar’s counsel’s referring to an AEO-designated document in Mr. Keplar’s

presence and beginning questioning of Mr. Moyer before Google’s counsel returned

from a restroom break and perhaps being uncharitable in agreeing to those breaks –

even if violative of the January 9, 2024 protective order’s terms – do not rise to the

level of Rule 37(b)(2) violations of the January 9, 2024 Electronic Order possibly

warranting anything more than an award of partial fees for Google’s filing the

Cross-Motion for Sanctions.

But the Court finds that the interests of justice do not support, under Rule

37(b)(2)(C), shifting any expenses incurred in drafting and filing the Cross-Motion

for Sanctions when, separately, the Court would be equally justified in awarding

Keplar, under Rule 37(b)(2)(C), an equivalent portion of his expenses incurring in

drafting and filing his Motion for Sanctions as to Google’s limiting Ms. Piazza’s

corporate representative testimony as to the second ordered Rule 30(b)(6) topic. In

short, one or more applications for attorneys’ fees would, under the circumstances

here, come at an unacceptable cost in judicial time, and the circumstances before the

Court make awarding expenses under Rules 37(a)(5) or 37(b)(2)(C) to either party

unjust.

But the Court is mindful of another court’s admonition in a similar sanctions

context. In Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007), a panel of the United

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States Court of Appeals for the Seventh Circuit explained that “[m]utual enmity

does not excuse the breakdown of decorum that occurred at [a witness’s] deposition”

in that case but that, “[i]nstead of declaring a pox on both houses, the district court

should have used its authority to maintain standards of civility and

professionalism.” Redwood, 476 F.3d at 469.

The panel offered the important reminder that “[i]t is precisely when

animosity runs high that playing by the rules is vital. Rules of legal procedure are

designed to defuse, or at least channel into set forms, the heated feelings that

accompany much litigation. Because depositions take place in law offices rather than

courtrooms, adherence to professional standards is vital, for the judge has no direct

means of control.” Id. at 469-70.

Consistent with that advice, the Court will, on these competing sanctions

motions, enforce the requirements of both its own orders and the Federal Rules.

Google’s counsel has now twice read the scope of the relief that the Court

ordered in its January 9, 2024 Electronic Order granting in part and denying in part

Keplar’s Motion to Compel more narrowly than the order’s language provides.

Google’s counsel made clear during the February 14, 2024 emergency

telephone conference Google’s displeasure with the scope of that order as written and

as clarified by the Court during the conference. That misreading was rendered

harmless by counsel’s seeking clarification during the February 14, 2024 emergency

telephone conference, as Keplar acknowledges. See Dkt. No. 103 at 1 n.2.

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But Google’s counsel also misread the Court’s ordering language regarding the

second Rule 30(b)(6) topic. And the language of the Court’s order should have

prompted Google to at least seek clarification before preparing and presenting its

corporate representative to testify only “regarding the identity and circumstances of

separation, if any, of so-called Level 8 employees who were employed as directors

(the same level as Keplar) concurrently with Keplar in in the Financial Services

Industry vertical of the Google Cloud sales organization of which Keplar was a part”

and correspondingly limiting its document production and interrogatory answers.

In these circumstances, the just and proper outcome here under the Federal

Rules is to require the continued deposition of Google’s corporate representative

witness, Yolande Piazza, for two more hours and limited to the second ordered Rule

30(b)(6) topic as ordered in the January 9, 2024 Electronic Order [Dkt. No. 76] –

after Google supplements it its document production and interrogatory answers

consistent with the parties’ agreement reported in the Joint Notice [Dkt. No. 83].

Google will be responsible for paying for the court reporter for this limited

continued corporate representative deposition, which will again take place over

Zoom.

Google’s Cross-Motion for Sanctions suggests that Keplar should be required

to pay for an attorney-mediator (or other Court-designated intermediary) to attend

this deposition to confirm Keplar’s counsel’s compliance with the January 9

protective order. But that would involve more expense and trouble that is warranted

here.

-39-

Rather, the Court orders that the deposition of Yolande Piazza as Google’s

corporate representative will be continued for no more than 2 hours on Monday,

March 18, 2024 beginning at a mutually agreeable time no earlier than 10:00 a.m.

Central Time, and the undersigned will sign on to the Zoom deposition and, with the

undersigned’s camera off unless called on to speak, will monitor the deposition’s

conduct.

The Court will not rule on objections, if any, as they are made. That is not

Rule 30(c)(2) or, more generally, depositions work, and the parties here are not,

under the circumstances, entitled to special treatment or any kind of reward through

this extraordinary relief that the Court feels compelled to provide. But the

undersigned will be present in the event that the parties have a dispute regarding

the scope of the deposition and to ensure compliance with Rule 30 and the January 9

protective order.

Counsel must send an email to Horan_Orders@txnd.uscourts.gov by March

14, 2024, providing the time and Zoom log-in information for the March 18, 2024

deposition.

In connection with this continued deposition, Keplar’s and Google’s counsel

are each admonished to comply with the terms of the January 9 protective order and

with Rule 30’s mandates, including Rule 30(c)(2)’s limitations on the manner of

objecting.

The Court also orders Google to supplement its document production and

interrogatory answers, consistent with the Court’s orders, in advance of this

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Court-monitored and limited continued corporate representative deposition and by

no later than March 14, 2024.

And the Court finds that no other alleged sanctionable conduct warrants any

additional relief against Keplar or Google under the Federal Rules or the Court’s

inherent powers. This limited relief should draw discovery in this case to a close.

Conclusion

For the reasons and to the extent explained above, the Court grants in part

and denies in part Plaintiff Jeffrey Keplar’s Emergency Motion to Enforce Order on

Motion to Compel and Extend Discovery Period as Necessary, and to Compel

Responses to Interrogatories, Requests for Admission and Document Requests [Dkt.

No. 79], Plaintiff Jeffrey Keplar’s Motion for Sanctions [Dkt. No. 88], and Defendant

Google, LLC’s Cross-Motion for Sanctions [Dkt. No. 101].

SO ORDERED.

DATED: March 8, 2024

Le

UNITED STATES MAGISTRATE JUDGE

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