Barksdale School Portraits brought claims against a former employee, Ms. Williams, regarding the establishment of a new competing company, E-llumination. In the midst of the Covid-19 pandemic, the plaintiff noticed and conducted Ms. Williams’ deposition by videoconference via Zoom.  During the deposition, Ms. Williams and her attorney, Mr. Rosin, sat in the same conference room, and, over plaintiffs’ counsel’s objection, both wore face masks throughout the entire deposition, citing “COVID rules”.  In the fifth hour of the deposition, plaintiffs’ counsel overheard Mr. Rosin provide Ms. Williams with an answer to a question and witnessed Ms. Williams repeating the same answer as her own. He confronted Mr. Rosin, who rebuffed the allegation, and the deposition continued. Following the deposition, plaintiffs’ counsel reviewed the video recording and identified over 50 other instances where Mr. Rosen provided Ms. Williams with the answer.

The Court granted the plaintiff’s motion for sanctions, disqualifying Mr. Rosin from further representing Ms. Williams, and allowing the plaintiff to play the recorded exchanges at trial.

“Although Defendants do not dispute that Mr. Rosin surreptitiously fed answers to Ms. Williams during the deposition, they nevertheless contend that they should not be subject to sanctions. Defendants’ arguments for why sanctions are not appropriate are unpersuasive.

“First, Defendants argue that the court should not grant Plaintiffs’ request for sanctions where Plaintiffs have ‘unclean hands’ as a result of ‘unprofessional’ and ‘untoward’ behavior exhibited by Plaintiffs’ counsel towards Ms. Williams during the deposition. Defendants also point to Plaintiffs’ alleged failure to disclose relevant and responsive documents during discovery. Courts have repeatedly held, however, that a defense of unclean hands may not be based on discovery misconduct. Instead, where a party contends that its opponent has failed to comply with their discovery obligations, the appropriate remedies are found within the Federal Rules (e.g., a motion for a protective order or a motion to compel). Mr. Rosin is not relieved of his obligation to engage in fair and ethical discovery practices simply because he perceives unfair play by the other side.

“Second, Defendants contend that the answers provided by Ms. Williams during the deposition were always truthful. Defendants insist Ms. Williams required ‘professional help to make sure that her truth was not obscured in the face of substantial adversity’ and that ‘there was no sanctionable conduct’ where all of the testimony was truthful. This argument is based on the untenable premises that Mr. Rosin’s understanding of the facts is authoritative and that the formal modes of discovery set forth in the Rules of Civil Procedure may be ignored. It is the finder of fact, and not Ms. Williams’ counsel, who will ultimately determine whether Ms. Williams’ testimony was truthful or credible, and Plaintiffs are entitled to utilize the modes of discovery set forth in the Rules to test the truth of that testimony.”

The Court refused, at the same time, to dismiss Williams’ claims and defenses completely. While Mr. Rosin’s conduct was clearly unacceptable, and while Ms. Williams was complicit, “the record before the court suggests that Ms. Williams was following her counsel’s lead. Because the court finds that wrongdoing here is primarily the result of counsel’s conduct and because the wrongdoing did not unfairly prejudice Plaintiffs, dismissal is too severe a sanction.”


Barksdale School Portraits v. Williams, No.20-11393, 2021 WL 4398355 (D.Mass. Aug. 31, 2021).