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City’s Attorney Asks for Protective Order to Prevent SunCal’s Abusive Deposition Tactics

The attorney representing the City of Alameda in SunCal’s public records lawsuit against the City has filed a motion for a protective order “to prevent abusive deposition tactics and the deposition of defendants’ counsel and for the imposition of monetary sanctions,” saying that Louis Miller’s tactics are intended to intimidate the employees of the City of Alameda and uncover information that SunCal might use in its federal lawsuit against the city.

In a November 16th 2010 letter to Louis Miller of Miller Barondess, LLP, attorney David Newdorf warned Miller that he would ask the court for a protective order if he continued to ask questions that were relevant only to SunCal’s federal case against the city, if he repeated the same questions over and over, and continued to attempt to intimidate the witness under deposition. The letter was prompted by a review of the transcript of depositions taken on November 12th of then-Interim City Manager Anne Marie Gallant and City Clerk Lara Weisiger. Transcripts of those depositions are included in Newdorf’s court filing, as well as the deposition of then-Mayor Beverly Johnson.

In his declaration in support of the motion for a protective order, Newdorf wrote that he raised the issue of Miller’s “aggressive, argumentative, abusive, irrelevant and burdensome deposition questions” in the 12-page November 16th letter, and discussed the issue with Miller’s partner, Brian Procel. According to Newdorf, Mr. Procel agreed to not ask questions of the sort detailed in the November 16th letter, but then subsequently broke that promise in the deposition of Beverly Johnson.

Newdorf’s motion for a protective order, filed December 14th, asks the Court to limit SunCal’s questioning to the subject of the existence of public records, prohibit SunCal’s counsel from asking questions related to the allegations in the federal breach of contract lawsuit, prohibit questions that are “argumentative, repetitive, legal contentions, call for legal conclusions, contain intentional false statements, or that are otherwise intended to intimidate, annoy, embarrass or oppress or cause undue burden and expense, and limit future depositions to one hour. It also asks the court to order SunCal to pay a monetary sanction in the amount of $15,191 to cover the fees involved in reviewing the transcript and preparing the motion.

Former City Attorney Teresa Highsmith and Senior Assistant City Attorney Donna Mooney were to be deposed by SunCal’s attorneys as well, but Newdorf moved to quash those depositions, on the basis that SunCal will only repeat the same questions they’ve already asked of previous witnesses.

A hearing on the motion is scheduled for January 14th, in Hayward. The case is number RG10537988 in Alameda County Superior Court.

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