Author: Jeremy Gilman (former Partner at Benesch Law)
Depositions are never picnics. But seldom are they wars. Read below, and brace yourself.
The Chef’s Warehouse describes its business in delectable terms. It is, it says in an SEC filing, “a premier distributor of specialty food products in the United States and Canada,” focused “on serving the specific needs of chefs who own and/or operate some of the leading menu-driven independent restaurants, fine dining establishments, country clubs, hotels, caterers, culinary schools, bakeries, patisseries, chocolatiers, cruise lines, casinos and specialty food stores in the United States and Canada.” And its product portfolio sounds appetizing: “over 43,000 stock-keeping units … comprised primarily of imported and domestic specialty food products, such as artisan charcuterie, specialty cheeses, unique oils and vinegars, truffles, caviar, chocolate and pastry products.” There’s also “custom cut beef, seafood and hormone-free poultry” as well as “cooking oils, butter, eggs, milk and flour.” Throw in a case of wine, a sunny summer day and a nice patch of grass and you’re set.
Plaintiffs Shaon Robinson and Sean Clark brought a putative class action against The Chef’s Warehouse West Coast, LLC, in a San Francisco federal court, alleging wage and hour violations and asserting discrimination claims.
Defendant noticed Robinson’s video deposition. Plaintiffs’ counsel Michael Hoffman appeared, as did defense counsel Michele Beilke and Lori Mulcare, defendant’s corporate representative.
What happened at that deposition? Let’s just say no one nibbled on truffles, caviar and chocolate. All quoted and indented text is the court’s.
The Magistrate’s “Order Granting in Part and Denying in Part Defendant’s Motion for Sanctions [and] Referring Michael Hoffman to the Standing Committee on Professional Conduct for Disciplinary Proceedings,” dated March 21, 2017, says it all, and novelistically so (the genre would be horror). So without further ado, here’s the court:
During the course of the deposition, Mr. Hoffman repeatedly insulted Ms. Beilke, improperly objected to numerous questions, and, at one point, threw his hands in the air, paced, and stood in the corner with his back to the deposition. Mr. Hoffman commented on the record that the female energy in the room was conspiring against him. Ms. Beilke, Ms. Mulcare, and videographer Cassia Leet all found Mr. Hoffman’s behavior to be erratic and threatening, they feared for their safety, and believed that Mr. Hoffman may be under the influence. In fact, Ms. Leet was so intimidated by Mr. Hoffman that she was not comfortable asking him to wear a microphone. As a result, Mr. Hoffman voice was not amplified as much as Ms. Beilke, who was wearing a microphone, so the video does not necessarily reflect the fact that Mr. Hoffman raised his voice several times. Ms. Leet later emailed her employer, Veritext, advising them that she did not feel safe in the room, and put in a request to never work at a deposition involving Mr. Hoffman again.”
The parties took a break. During the break, Ms. Beilke exited the conference room, followed by the court reporter, who told Ms. Beilke that “she feared for our safety and was uncomfortable proceeding with the deposition.” Shortly thereafter, the videographer came out and said that she was scared because Mr. Hoffman was making disparaging comments about “female energy” and she did not want to be alone with him in the room. After returning from the break, Ms. Beilke stated that she was suspending the deposition and seeking a protective order. Mr. Hoffman repeatedly insisted on contacting the undersigned pursuant to the Court’s Standing Order to address the dispute prior to suspending the deposition. Mr. Hoffman was combative and refused to allow her to go off the record. He then proceeded to insult her:
HOFFMAN: — if you can’t do your job, Counselor, then you should .. maybe find another job. Because this is your job to ask questions. If you can’t do your job, then again, find another one. That’s right. That’s right. You sit here now –
BEILKE: Don’t – don’t –
HOFFMAN: — like a professional.
BEILKE: Do not threaten me.
HOFFMAN: I can’t believe you – I can’t believe you are doing this. You are, like, so sad. You call yourself a lawyer?
BEILKE: Keep going, Mr. Hoffman.
HOFFMAN: I just can’t believe – I just can’t – I’m going to – I’m going to call the court on me – I’m going to call the court on you. You are so thin-skinned. You can’t ask a question. I’m shocked. I am just shocked. I’m going to call the court right now. I’m going to see what’s up. I’m waiting for – I’m waiting for the number from my office. We are going to call the court. This is a joke.
Mr. Hoffman stood up again and blocked the only exit from the conference room. Mr. Hoffman then called Ms. Beilke a “coward” for suspending the deposition. Ms. Beilke left the conference room, but Mr. Hoffman did not. Ms. Beilke had to call security to convince Mr. Hoffman to leave the premises, which he refused to do before giving a verbal statement which was recorded by the videographer.
Okay, stop. Let’s pause for a moment to remind ourselves that the practice of law is a learned profession… No, really. All right, let’s continue:
In response to Mr. Hoffman’s need to finish before 5:00, Ms. Beilke stated that “we will do our absolute best to finish up a line of questioning by, you know, 4:55, 5:00 o’clock.” This was apparently very offensive to Mr. Hoffman, who proceeded to interrupt her, call her unprofessional, and threaten her:
HOFFMAN: That’s not professional to raise your voice. Because if you start raising your voice, then I’ll sense anger which may trigger my own anger. So if you kindly would stop raising your voice, that would be appreciated. Because if I raise my voice, it’s much more alarming and I would prefer not to do that, so kindly quit raising your voice, please.
BEILKE: Okay. I’m going to ask that you please not interrupt me when I am speaking. You will have your opportunity to respond to what I’m saying when I am finished and –
Mr. Hoffman exhibited an extreme reaction by launching into a diatribe on “basic human rights and respect” based on the possibility that he could be kept past 5:00 p.m.:
HOFFMAN: Counselor, what we have right here is an issue of basic respect. If you have a basic disrespect for a person that says that they have a commitment at 5:00 p.m., then already I’m sensing terrible issues throughout the day. Because 5:00 p.m., if that’s not respected, I shudder to think what else will not be respected. So, again, basic human rights will be respected here today. Because if basic human rights are not respected here today, we will leave today. And you can come back when you think you can respect our basic rights; is that understood, Counselor?
BEILKE: Okay. First of all –
HOFFMAN: Is that understood, first of all? Do you understand what I am saying?
BEILKE: I am not here to answer your questions.
HOFFMAN: Then don’t talk to me directly anymore, I’m – don’t talk – don’t speak to me directly anymore.
Mr. Hoffman explained that he had a child-care commitment, and that the above exchange was a “kind request that we proceed in a respectful manner,” but the Court found that “nothing about Mr. Hoffman’s tone or choice of words could be construed as being respectful. To the contrary, his tone was aggressive and threatening.”
The court also found that “Mr. Hoffman impeded the deposition by making improper objections,” which the court said prompted him to “launch into another tirade”:
HOFFMAN: You really are such a sad advocate. Is this all Reed Smith really has for Chefs’ Warehouse? Is this what you really get for your money? This is pathetic. This is really sad. She greets me, her head’s all over the place, flustered just – just – just no bearing on anything, just throwing things all over the place. You are like a little control freak expecting me to go along with – with whatever you want with no foundations for your documents. You are out of your mind, Counselor. If you expect yourself to throw documents at my – at my client that he’s never seen before and expect yourself to be bolstered by heretofore – completely never seen documents by him. You are sorely mistaken, Counselor. I don’t know what you heard about me, okay, but I’m not a chump. I’m not going to take questions with no foundations. Okay?
Ms. Beilke responded by stating “Okay. So –” before being immediately interrupted by Mr. Hoffman, who proceeded to lay out “rules” in an attempt to limit the evidence discussed in the deposition to the instant lawsuit:
HOFFMAN: So you need to ask what you want to do, but this – this is not happening. Okay? We are going to get some rules. Some procedures here and some respect for Shaon Robinson. Okay? We are not going to be clobbering him with documents that he has never, ever even seen before and expecting him to go ahead and confirm some of your ludicrous assertions. That’s not happening. Can you ask a question with some evidence, something that has to do with this case. Then we can participate.
The Court notes that the “documents” Plaintiff was “clobbered with,” and had purportedly never seen, were complaints in two prior lawsuits in which Mr. Robinson was a named plaintiff, and was represented by Mr. Hoffman. Accordingly, Mr. Hoffman’s objections were frivolous.
Let’s pause again. We need some wine. A bit more. Okay… let’s continue.
During the course of the deposition, Mr. Hoffman repeatedly interrupted Ms. Beilke, usually to generally attack and insult her. At one point, however, he interrupted one of the few questions Ms. Beilke was able to ask Mr. Robinson to ask if someone took his coffee.
Additionally, Mr. Hoffman’s physical conduct further impeded the deposition. For example, when Ms. Beilke noted for the record that Mr. Hoffman turned his back to her and her client, and that they were looking at the back of his head, Mr. Hoffman corrected them that they were looking at the back of his “bald head.” Mr. Hoffman then decided to stand in the corner, was pacing, and throwing his hands in the air. When asked what he was doing, he responded:
HOFFMAN: You are a joke. You are a liar. You’re misrepresenting what’s happening here. I’m getting out of the way. You can ask him a question.
Ms. Beilke understandably initiated a short break. When she came back on the record less than four minutes later, Ms. Beilke announced that she was suspending the deposition. In response, Mr. Hoffman accused Ms. Beilke, Ms. Mulcare, videographer Ms. Leet, and the court reporter of engaging in a conspiracy against him, and threatened Ms. Beilke with sanctions for suspending the deposition:
HOFFMAN: No, I will say something now. It seemed to me that all four ladies walked out of the room and there is a little bit of a conspiracy going on by actually official reporters. People here who actually have a duty to be neutral. Okay? And I saw all the ladies go out at once and all the ladies came back together. I’m just sensing that there’s some kind of energy here in the room that was very threatening to me personally, accusations were leveled throughout that I was raising my voice. A picture was trying to be painted that I was somehow behaving inappropriately when it seemed that lawyers and other people were behaving very disrespectfully to me and my client from the gate. Especially from the start, at 5:00 p.m., there was a major issue trying to leave by 5:00 p.m. There was major constraints and roadblocks, and then we got on the record and it got worse and worse. Counsel was trying to portray me in the situation that was either outright false – and actually she lied about my behavior and my level of my voice. I mean, she, in fact, was raising her voice. And now after I take a whole day from my schedule and so has Mr. Robinson, take the whole day out from his schedule, and you are not prepared to follow through with your day. I insist we call the chambers right now and get some advice from – from the chambers. That’s my advice right now. We call the magistrate now. Because I’ve spent my whole day here trying to get here, and if you leave today, I will seek request for sanctions. Because I’m requesting now that we call the chambers. We – and we say, we have a problem with – with you, Ms. Beilke, and you have a problem with me, Mr. Hoffman. So you have a problem with me; I have a problem with you. Let’s see what the court says.
Let’s go on hold. We need to relax for a while. How about we go running with the bulls in Pamplona? Okay, let’s resume.
Mr. Hoffman repeatedly insulted Ms. Beilke, which included calling her a “complete caricature,” a “joke,” “confused,” “pathetic,” a “liar,” and “the weakest lawyer I have seen in a very long time.” He referred to her as “such a sad advocate” and berated her about wasting time, her hourly rate, and the quality of her legal work in one of his many tirades:
HOFFMAN: You are wasting our time. You’re wasting valuable time you can have to cross-examine Mr. Robinson, because you don’t have the coverage or the know-how or – or the ability to formulate a question, so you have to go because you can’t sit here and actually ask him a question. Is that what you are really telling your client? How much are you charging this – this –this Chefs’ Warehouse? At least 500 an hour and you can’t ask a question. Ask a question, Counselor. Let’s see what they get for 500 an hour.
Mr. Hoffman’s supporting declaration only serves to express misogynistic views that have no place in the legal profession. Mr. Hoffman believed that the four women, including the neutral court reporter and videographer, were conspiring against them, because they took a break and “glared” at him. Based on the transcript and the declarations filed in support of the motion for sanctions, what Mr. Hoffman interpreted as a “conspiratorial energy” amongst the four women in the room, can be more reasonably interpreted as collective fear at the prospect of further angering a self-described “muscular adult male” who stands at “6’2” and 205 lbs.”
After the deposition, defendant moved for sanctions against Hoffman “pursuant to Federal Rule of Civil Procedure 30(d)(2), 28 U.S.C. § 1927, and the Court’s inherent authority,” and the court largely granted that motion (it denied one component). It ordered Hoffman to pay defendant $7,706.32 for fees and costs incurred and admonished him that this payment obligation may “not be passed on to his clients.” It also ordered that Robinson’s deposition proceed and that defendant would “have a full seven hours to obtain his testimony.” And it referred Hoffman to the U.S. District Court for the Northern District of California’s Standing Committee on Professional Conduct for further investigation.
So much for our picnic. But before we go, here’s another segment from the court’s opinion, this one relating to the hearing on defendant’s sanctions motion:
Mr. Hoffman’s bizarre behavior at the hearing reinforced the conclusions drawn from the video:
THE COURT: In this particular case, I understand why she [Ms. Beilke] felt threatened, I understand why the videographer felt threatened, I understand all of it.
HOFFMAN: Thank you.
THE COURT: So you’re not going to stand here and defend yourself? That’s what you’re telling me?
HOFFMAN: I think you know what you think. I think you’re very convinced of your beliefs.
THE COURT: No, these are not my beliefs. This is an actual video that anybody who’s able to hear and see will observe.
HOFFMAN: Your Honor, I think on that point, it’s possible that we could do this video in front of thirty or forty control group people, males and females, and, with all due respect, Your Honor. It is your mind, your opinion that your worth or your belief or your faith, whatever it is, that is what you are resting your belief that I was the one who was 100% culpable, and I submit that it is difficult to say, and I submit that if we brought thirty or forty people in here and have them view these events, I suggest that it’s possible, that different people who had different experiences –
THE COURT: It has nothing to do with that.
HOFFMAN: may view—
THE COURT: No.
HOFFMAN: Well, again –
THE COURT: You are a lawyer.
HOFFMAN: Again, I am tapped out, your Honor. I respect the fact that you are convinced, and I have nothing more to say then. I am not standing here trying to change your mind. I’m not trying to do that… It is far more important for me to speak my truth for whatever decision. And that I swear. So all I can do Your Honor is sit here, stand here and tell you my truth, and my feeling of being triggered, and my own threats, threatening behavior that was [unintelligible], and I know that I am a big strong, tall, you know, and I know you’re picking up whatever you’re picking up, as Ms. Beilke was picking up, and sort of assuming the truth of Michael Hoffman. What’s Michael Hoffman going to do? Is he really going to start physically attacking me? Does she feel safe in the room? Does she feel safe with Michael Hoffman as a physical reality? I don’t know.
THE COURT: Actually, your physicality is very tangential to any of it. What it has to do with is your actual erratic behavior. The actual name calling, the standing in the corner, the turning your back to the table and talking about them looking at your bald head, and the diatribes, and the streams of consciousness, and all of this kind of stuff that is clear on the video for an hour almost. Where Ms. Beilke got in maybe a few very frustrated “stop interrupting me,” and “no, you’re not going to tell me what questions to ask,” and “no, stop interrupting me,” and “okay,” several times, and then you going back into your diatribes. That’s what that video consists of.
HOFFMAN: The question is, Your Honor, are you convinced?
THE COURT: There is no such deposition.
The court notes that Mr. Hoffman appeared to be on the verge on a mental breakdown at several different points in the hearing. His cadence and tone were such that he would speak abnormally slow at times, and then exhibit flashes of anger and defensiveness, during which he would speak more quickly. In one of many bizarre moments, he started talking about this probably being his last case, because only Mr. Robinson was “keeping him in the game.” He said that he is very well off financially, and does not need this work anymore. The Court notes that Mr. Hoffman is counsel of record in three other cases currently pending in the Northern District.
Mr. Hoffman also appeared detached from reality and suggested that others, presumably men, would not perceive his behavior during the deposition to have been threatening or unprofessional. The Court notes that Mr. Hoffman did not take responsibility for his behavior nor admit that he was in the wrong. Instead, he blamed Ms. Beilke for speaking in a “highly caffeinated tone,” and implied that the Court’s experience as a woman colored its perception that his behavior was unprofessional and threatening, because reality was subjective and based on one’s own experiences.
The case is Robinson v. The Chef’s Warehouse, United States District Court, Northern District of California, case no. 3:15-cv-05421-RS(KAW), 2017 WL 1064981. The full opinion on defendant’s sanctions motion can be viewed here.