U.S. Magistrate Judge Daniel G. Martin of the Northern District of Illinois recently issued an opinion that sanctioned a defense attorney for badgering a whistleblower during her deposition. The ruling serves as a reminder to potential whistleblowers of the difficulties in coming forward with evidence of fraud but also that the courts can be approached to ensure fairness in such litigation.
In U.S. and State of Illinois, ex rel. Baltazar v. Warden, et al., Case No. 07 C 4107 (N.D. Ill.), whistleblower Kelly Baltazar filed suit against her former employer Lillian S. Warden and her corporation, Advanced Healthcare Associates, for filing false claims for payment with Medicare and private insurers. As part of the ongoing case, the defendants’ counsel took the deposition of Baltazar. However, during the deposition, the defendants’ counsel was insulting and belligerent. Consequently, Baltazar filed a motion seeking a protective order and sanctions.
On September 8, 2014, Magistrate Judge Martin issued his opinion and granted Baltazar’s motion in part. While the Court did not agree with each point raised by Baltazar as evidence of unprofessional conduct, the Court did agree that the defendants’ counsel, over the course of 5 hours and 2 minutes: improperly accused Baltazar of being a liar; inappropriately acted with hostility, utilized a sarcastic, disrespectful tone, and personally attacked Baltazar for her actions before and during the lawsuit; embarrassed Baltazar by questioning her about the impact of her lawsuit on the individual defendant and her family and finances; intimidated Baltazar and her counsel; and wrongly commented on Baltazar’s testimony.
The Court held that the defendants’ counsel’s actions constituted sufficient grounds for issuing a protective order and sanctions pursuant to Federal Rules of Civil Procedure 26(c)(1) and 30(d). Specifically, the Court said that the same defendants’ counsel could not resume taking or even attend the remaining 1 hour and 58 minutes of Baltazar’s deposition and that the deposition would continue at the federal courthouse. The Court also listed specific rules of decorum the parties would have to follow in order to prevent a repeat of the behavior challenged by Baltazar. Moreover, the Court held that the defendants’ counsel was responsible for paying Baltazar’s attorney’s fees and costs for bringing and arguing the motion in the first place.