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Plaintiffs Unveil Smoking Gun Photo in Support of 'Deposition Toe-Tapping' Accusation

I was a litigator for years. How do I not know about tricks like deposition toe-tapping? Maybe I needed to practice in Florida to learn these things? The South Florida Lawyers blog reports that accusations of "the ancient method of 'toe-tapping' to allegedly signal to a witness how to respond during a deposition" are being thrown around in a case pending in federal court down in Key West.

In a motion filed July 30, 2010 seeking sanctions and the termination of the alleged toe-tapper's pro hac vice status, plaintiffs claim that on July 12 their counsel, Juan Carlos Antorcha, was conducting a deposition by telephone that was attended in person by a paralegal working for plaintiffs' counsel. The paralegal who attended the deposition for them claims he "heard a clicking sound, looked around, and noted that [defendant's attorney Kenneth] Engerrand was tapping the foot of Witness Dennis at different points after questions were asked." The paralegal was alarmed and, after swapping text messages with plaintiffs' counsel who was taking the deposition remotely, took matters into his own hands and memorialized the toe-tapping with the following photo from his camera phone:


Plaintiffs allege that "an amazed Antorcha asked the witness and Mr. Engerrand if foot-tapping was
going-on. Mr. Engerrand denied it; the witness admitted it. Antorcha then terminated the deposition."

Plaintiffs seem to have had plenty of fun putting together their motion. The smoking gun camera phone photo is embedded as a footer on each page. In addition, plaintiffs argue that Engerrand's explanation that any "foot brushing" was caused by close quarters under the table is undercut by the photo, in which "one sees a Rosemary Wood-like stretch of Mr. Engerrand's foot, as he apparently repeatedly taps the foot of the witness while questions are being asked." Plaintiffs go on to inquire if "the Court see[s] any reason for Mr. Engerrand's tasteful shoe to be touching the witness's foot in its tortured Arthur Murray posture?"

Check out the full motion here.

Posted by Bruce Carton on August 6, 2010 at 12:58 PM | Permalink | Comments (4)


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