First, while the Court had expressly ordered Circle K to disclose “the names, with correct spelling, and complete last known contact information, including complete addresses and telephone numbers, of any employee who worked at this particular Circle K store between August 1, 2023 and October 14, 2023, and for each such employee to indicate the starting date and ending date of their employment with Circle K,” Circle K did not disclose the market, regional, and district managers assigned to the Store.  During the deposition of one employee, the witness identified the first name of one of these managers, (Stacy), but could not recall her last name.  During follow-up questioning, the witness stated that Stacy happened to be at the store where the deposition was taking place.  Plaintiff’s counsel asked the witness whether she could get Stacy’s last name during the next break in the deposition, and the witness agreed.  However, Circle K’s counsel objected that plaintiff’s request was a “discovery request” that had to “go through” Circle K’s counsel and insisted that Plaintiff’s counsel send him a formal “discovery request” before Circle K’s counsel would “look into it.”

Secondly, Circle K’s counsel repeatedly and improperly instructed witnesses not to answer questions at deposition based on the attorney-client privilege, although the questions did not seek communications between the witnesses and Circle K’s counsel.  Rather, the questions asked for information such as: (i) how the witnesses knew to contact Circle K’s counsel to prepare for their depositions; (ii) whether the witnesses talked to Circle K’s counsel in preparation for their depositions; and (iii) when and how long the witnesses spoke with Circle K’s counsel.

Finally, Circle’s K’s counsel’s accused Plaintiff’s of “harassing” a witness by asking about incidents of criminal activity other than the attack on Plaintiff and threatening to terminate the deposition.

Granting the Plaintiff’s Motion for Sanctions, the Court ruled as follows:

“It is well-settled that preliminary mattes such as the fact of consultation, as well as dates, places, and means of consultation, are usually outside the coverage of the privilege.  State v. Adamson, 136 Ariz. 250, 263 (1983).  The questions asked by Plaintiff’s counsel were preliminary in nature and did not seek the substance of any communications between the witnesses and Circle K’s counsel.  Indeed, Plaintiff’s counsel cited Adamson to Circle K’s counsel in an effort to get him to reconsider his position.  Circle K’s counsel refused to “meet and confer” about the issue on the record and threatened to terminate the deposition when Plaintiff’s counsel attempted to address the impropriety of the instruction not to answer.  Even worse, Circle K’s counsel persisted in improperly instructing witnesses not to answer on the basis of privilege at subsequent depositions. ….  The Court personally has observed communications between counsel at hearings on discovery disputes.  Unfortunately, the communications oftentimes have not displayed the level of professionalism the Court expects of counsel.  Similarly, after reviewing the deposition transcripts and viewing portions of videotaped depositions, the Court finds that Circle K’s counsel sometimes was unnecessarily antagonistic and confrontational at the depositions.  In short, the Court expects better of counsel. Because the Court finds that Circle K’s counsel inappropriately instructed witnesses not to answer questions at the deposition, the Court will allow Plaintiff to take additional depositions of these witnesses.  Plaintiff’s counsel is reminded, however, that this does not mean that the depositions are completely re-opened to re-examine the witnesses on areas that already were fairly covered.  The depositions are limited to those issues that Plaintiff’s counsel was not able to cover due to Circle K’s counsel’s conduct.  The Court will require Circle K to pay for the reasonable costs of the supplemental depositions. Pursuant to Rule 37, the Court finds that it is appropriate to award Plaintiff his reasonable attorneys’ fees incurred in filing the Motion (and Reply) and to require Circle K to pay for the reasonable costs (including attorneys’ fees and court reporter costs) of conducting any supplemental depositions as ordered above.  In this regard, the Court finds that Circle K’s and its counsel’s discovery and disclosure violations as set forth above were not substantially justified, and there are no other circumstances that make such an award unjust.”

 

Paqua v. Circle K Stores, No.2023-016125 (Ariz. Superior Ct. Maricopa County June 2, 2025).