On August 25, 2017, Justice Shirley Werner Kornreich of the New York Commercial Division entered an order reprimanding a high-profile lawyer, Mark Geragos, for misconduct during a deposition, including refusing to answer questions in violation of the court’s explicit instructions.  Gottwald v. Sebert, No. 653118/2014, 2017 BL 303419 (N.Y. Sup. Ct. Aug. 25, 2017).

The order arose in the context of a dispute between music producer Lukasz Gottwald (known professionally as Dr. Luke) and pop music star, Kesha.  Gottwald alleges that Kesha defamed him by making false allegations of mental and physical abuse.[1]

Kesha’s lawyer, Mark Geragos, was deposed in the lawsuit between Gottwald and Kesha.  During his deposition, Geragos refused to answer questions regarding statements he made to the press concerning the dispute between his client and Gottwald.  Counsel for Gottwald called chambers during the deposition, and the court instructed Geragos that the questions were relevant and ordered him to answer.  But Geragos persisted, claiming privilege.  Gottwald later moved to hold Geragos in contempt.[2]

In ruling on the contempt motion, Justice Kornreich found that Geragos’s privilege assertions were “utterly without merit.”[3]  Geragos, claiming work product protection, had refused to explain a statement he made on television that a drug Kesha received from Gottwald “turned out to be [the illegal drug] GHB.”[4]  Noting that the work product doctrine protects “materials uniquely the product of a lawyer’s learning and professional skills,” the court found Geragos’s statement to be an assertion of purported fact, not a reflection of legal research, analysis, or strategy, and therefore not protected.[5]

In addition, the court noted that “an attorney’s communications with a public relations firm are discoverable if, as here, such communications do not evidence legal advice.”[6]  The court found that Geragos’s communications were made for public relations purposes and not for the purpose of providing legal advice.  Indeed, Geragos claimed that another statement by him to the press was not made on Kesha’s behalf, but his own.[7]

The court also found that “[m]ost of the deposition was an utter waste due to Mr. Geragos being woefully unprepared.”[8]  According to the court, Geragos was “utterly unprepared” to testify regarding his communications with the press, even though those communications were the express subject of the subpoena compelling him to testify.[9]

Justice Kornreich noted that she was “dismayed at the conduct of a licensed attorney.”[10]  “Simply put,” she wrote, “Mr. Geragos refused to abide by a court ruling that he answer certain questions.”[11]  The court refrained from holding Geragos in contempt, although the basis for doing so was “fully set forth in the papers and supported by the documentation.”[12]  While Justice Kornreich did not issue sanctions, she ruled that Geragos and his firm had forfeited cost-shifting claims, and she ordered Geragos to appear for another seven hours of deposition.  At his second deposition, Geragos is required to answer all questions that he previously refused to answer on the grounds of privilege and to prepare himself in advance to answer all questions that he was not prepared to answer at his first deposition.  Justice Kornreich warned that Geragos will be sanctioned if he does not follow the court’s directive.[13]