In the first deposition of a lawsuit filed by two Florida planners against the CFP Board, the organizations representative declined to answer dozens of questions.
As a result, Kimberly and Jeffrey Camarda, married planners from Fleming Island, Fla., asked a federal judge in Washington to sanction the board to refund the costs they incurred to depose CFP Board staff counsel Adam Zajac last month.
The repeated refusals not to answer questions amounted to a failure to attend the deposition and warrants the imposition of sanctions, the Camardas lawyers argue.
It was the threat of a sanction that set the case in motion three years ago when the board threatened to publicly sanction the Camardas for calling their practice fee-only, which the CFP Board says is not true. The Camardas, who have since stopped using the term, argue that they should be given the same amnesty extended to hundreds of other advisors who used the term with impunity on the boards website.
In its court filing, the board argues that Zajacs behavior was proper and called the Camardas request for sanctions meritless. The board notes that the court has not yet ruled on its motion that most discovery requests from the Camardas be disallowed including most deposition requests. With that request outstanding, Zajac should not have been compelled to answer certain questions, the board argues.
Thats not always true, according to David Min, an assistant law professor at the University of California at Davis.
Its kind of a delaying tactic, Min says. I dont know that Id call [not responding to questions] common, but I think its more common than those interested in fairness and justice would prefer.
Michael Klausner, a professor at Stanford Law School, says most witnesses do answer questions in a deposition because they are legally compelled to do so, although some claim attorney-client privilege in not responding. In its filings, the board claims its disciplinary proceedings are privileged.
More commonly, Klausner says, a witness lawyer objects during the deposition, which is noted in the record, before the witness proceeds to respond. Later, if the objections stand, that testimony may be excluded from the trial.
In numerous filings, the board is seeking the courts protection from what it describes as a fishing expedition by the Camardas, whove asked for an array of documents, depositions and other materials.
In its filings, the board says it intends to provide the court "solely" with a transcript of the proceedings before a three-member disciplinary panel that first heard the Camardas' case and the transcript of an appeal, as well as its compensation disclosure rules. Its treatment of other planners, such as those who inaccurately called themselves fee-only on the boards website, is irrelevant to this case, the board maintains.
A CFP Board spokesman declined to elaborate beyond the court filings.
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