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When the stenographer’s hands stop moving, most lawyers believe they’re “off the record” – even though their every word may still be getting captured on the court reporter’s back-up cassette tape player. In an unusual sanctions motion filed in Chester County, Pa., Common Pleas Court this week, two Philadelphia lawyers attached a transcript from such a tape in an effort to prove that their opponent engaged in misconduct during an aborted deposition and then tried to cover up his sins by denying his conduct when he went back on the record. Attorneys Paul R. Rosen and Michael C. Wagner of Philadelphia’s Spector Gadon & Rosen argue that the tape proves that attorney James C. Sargent Jr. of Lamb, Windle & McErlane “got caught in a lie on a tape recording that he never expected to be transcribed.” According to the motion, the lawyers had gathered at the West Chester, Pa. Lamb Windle office so that Sargent could take the deposition of the lead defendant in a real estate dispute, James Stokes III. The court had ordered that Stokes submit to a second deposition because Rosen had instructed him not to answer certain questions during the first deposition. But Rosen objected early on in the second deposition that Sargent was violating the spirit of the court’s order by “opening new lines of inquiry.” In the sanctions motion, Rosen says that when he objected that Sargent was going beyond the scope of the court’s order, Sargent responded by terminating the deposition. “Well, you may terminate it, but I’m going to ask him questions,” Rosen said. “No, but then I’ll instruct the court reporter not to take it down,” Sargent replied. Rosen insisted that Sargent had no right to instruct the court reporter not to take down his questions, but Sargent said, “I hired her.” “That doesn’t matter,” Rosen replied. “Even if you’re finished taking your questions by terminating it, I have the right to ask questions.” Sargent was undeterred. “Okay. This deposition is terminated and I instruct you to cease transcribing,” he said. At that point, the court reporter stopped transcribing the lawyers’ words, but her back-up audio tape captured the exchange that followed. “I am asking you to take the next question and answer down,” Rosen said to the reporter. “I can’t – I don’t want to get – you have to call another …,” the reporter said. “Just put it on the record,” Rosen said, but Sargent interjected “no, I instruct you… Please, do not take down anything more.” “And, are you going to agree with that?” Rosen asked the reporter. “I don’t want to get in the middle,” the reporter said. “I was hired by Mr. Sargent. I really don’t know what to do at this point.” Rosen then said, “Do you want to call the court? Let’s put on the record that I want to call the court.” But Sargent said, “No, it’s too late.” Rosen insisted that he be allowed to put on the record that he wanted to call the court, but Sargent said, “Paul, would you please get out of our offices now.” “Would you please put that on the record?” Rosen asked. “No,” Sargent replied. “I asked you to leave our offices. You’re wasting my time. You’re wasting my client’s money.” Rosen says he then left the office and went to the chambers of Judge Katherine B.L. Platt who called Sargent and instructed both lawyers to continue the deposition. But when the deposition resumed, Rosen says that Sargent tried to cover up his conduct during the first session. Back on the record, Rosen said, “You were standing right here when I wanted to call the court, I wanted her to take it down, and I wanted her to take down her own statement that she’s going to listen to you and not take my statements down on the record to protect my client.” Sargent responded that “with respect to your gratuitous remarks about the court reporter, again, you and I don’t agree. … And I also point out that you never asked to call Judge Platt earlier.” In his sanctions motion, Rosen argues that “Mr. Sargent made this comment apparently unaware of the running of the audio tape recorder operated by the court reporter when Mr. Rosen earlier asked to call the court, never expecting that his on-the-record lie would be contradicted by his words as recorded by the audio tapes.” Sargent’s motive, Rosen argues, was to make a record that would support his argument that Rosen had engaged in an ex parte communication with the judge by going to her chambers alone. But Rosen argued that he “was clearly justified in seeking the court’s intervention,” because Sargent had “refused to permit Mr. Rosen to call the court, and instead expelled Mr. Stokes, Mr. Rosen and his associate Mr. Wagner from the office.” In a footnote in the sanctions motion, Rosen argues that “Mr. Sargent, having already accused Mr. Rosen of ex parte contact, needed on-the-record support for the position that Mr. Rosen’s conduct was improper and unjustified. As with former President Richard Nixon, however, the audio tapes tell an altogether different tale.” Rosen is asking that Sargent be sanctioned $5,000 and “admonished” with an instruction from the court that he “does not own and cannot exert control over a court reporter whom he hires for a deposition.” In an interview, Sargent said he believes he did nothing wrong and that it was Rosen who “has been obstructionist in this case from the outset.” The second deposition was only necessary, Sargent said, because Rosen had improperly instructed his client not to answer relevant questions and the court had ordered him to appear again and answer them. As for Rosen’s objections during the second deposition, Sargent said that they, too, were improper since there was no basis for accusing him of going beyond the scope of the court’s order. “He just didn’t think I should be starting where I was starting – but that’s not a proper objection,” Sargent said. Sargent said his decision to end the deposition was entirely proper because Rosen “stood on his objection – not once, but several times.” It was only after the deposition had been terminated that Rosen wanted to reopen the record, Sargent said. “I quite appropriately terminated the deposition when Paul Rosen was, you know, playing us once again,” Sargent said. “He has for months been wasting my time and my clients’ money,” Sargent said. But Rosen insists in his sanctions motion that Sargent’s conduct violated the rules. “It is clear that Mr. Sargent used plaintiffs’ motion to compel Mr. Stokes to answer the unanswered questions as a pretext to get a ‘second bite of the apple’ with respect to Mr. Stokes and to harass defendants,” Rosen wrote. And by kicking Rosen and Stokes out of his office and by refusing to permit Rosen to ask questions of the deponent or to call the court for guidance, Rosen argues that Sargent violated of Rule 4012(b). Finally, by making “a false representation of material fact” on the record when the deposition resumed, Rosen argues that Sargent violated Rule of Professional Conduct 3.3(a)(1) which provides that a “lawyer shall not knowingly make a false statement of material fact or law to a tribunal.”

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