The necessity to advance civil litigation during the COVID-19 pandemic remains a challenge for counsel, even as positivity and death rates are falling across the United States. Litigators are juggling client meetings, court hearings, and pretrial depositions, all online, one after the other — without the mental break formerly provided by travel from the office to the courthouse or a deposition location. (Not to mention balancing parental duties made challenging due to school and child care closures, managing COVID-19 health protocols, and adjusting to working remotely and the accompanying technology challenges.)
Depositions can be doubly challenging in this environment. Clients may be reticent to appear in-person for health or other reasons. Litigation strategy might dictate a preference for an in-person deposition, but the opposing party has noticed a remote deposition. Rescheduling is also more difficult lately because most case matters have already experienced a year’s worth of continuances and delays, exacerbating an already bloated court docket.
The solution is for counsel to bear down and muddle through. The worst course of action is to fail to appear for the deposition. As a recent case shows, it happens.
Sanctions Can Be Severe
The available sanctions for failure to appear for a deposition are enough to make any attorney think twice about counseling such a course of action without good reason. In federal cases, Rule 37 of the Federal Rules of Civil Procedure1 authorizes the court to order any of several punishing sanctions:
- Treat factual disputes as established in the prevailing party’s favor
- Prohibit the party who failed to appear from asserting claims or defenses, or from introducing evidence
- Strike pleadings in whole or in part
- Stay the case until the deposition is conducted
- Order the party, and/or the party’s attorney, to pay the prevailing party’s attorneys’ fees and expenses caused by the failure to appear
In the remote deposition environment, it may be tempting for a lawyer or party to refuse to participate in a remote deposition – whether for legitimate reasons (e.g., technological difficulty or scheduling concerns or for strategic reasons (e.g., stated preference for in-person hearing or unfamiliarity with the remote deposition technology). Regardless of whether a deposition is in-person or remote, a party seeking to avoid a deposition should not simply fail to appear. Not only is this course of action unprofessional, but it also exposes the non-appearing party to an inevitable request for discovery sanctions and leaves counsel in the unenviable position of having to engage in after-the-fact excuse-making for noncompliance.
Missing a properly noticed deposition will expose a party to sanctions even if the party is willing to appear at a later date. Courts have held that when a party fails to appear for a deposition, the opposing party is prejudiced by that failure and later compliance does not cure the effects of the failure to appear. Henry v. Gill Indus. Inc., 983 F.2d 943, 947 (9th Cir. 1993).
For example, in a case decided earlier this year, Khalaj v. City of Phoenix (PDF), No. 17-CV-01199 (D. Ariz., Jan. 22, 2021), the court imposed sanctions on a party who decided to skip a properly noticed deposition after negotiations to reschedule it had broken down. “When Plaintiffs sought to reschedule and Defendants refused because of the Court’s deadlines, it became Plaintiffs’ burden to seek out Court intervention,” the court remarked. “Plaintiffs made no effort whatsoever to contact the Court. Accordingly, the Court will grant Defendants’ Motion for Sanctions.”
Protective Orders May Help
The correct way to avoid exposure to sanctions for nonappearance at a deposition is for counsel to request a protective order under Rule 26 of the Federal Rules of Civil Procedure or, in the case of a nonparty witness, to file a motion to quash the subpoena under Rule 45.
Rule 26(c) states that courts “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Courts have broad discretion in all aspects of pretrial discovery, and their assessments of whether “good cause” to refuse to appear for a deposition exists are closely bound to the particular facts of each case.
During the COVID-19 pandemic, not surprisingly, courts have been asked to issue protective orders by parties seeking to avoid both remote depositions and in-person depositions.
In a very recent case, Mosiman v. C & E Excavating Inc., No. 3:19-CV-00451 (N.D. Ind., March 23 2021), the court denied a construction company’s determined effort to force the plaintiff to sit for an in-person deposition. The court ruled that the threat of COVID-19 transmission during an in-person deposition provided “good cause” for conducting the deposition remotely, even though COVID-19 positivity rates had been declining during the preceding months. The court rejected the construction company’s claim that a remote deposition would not allow counsel to adequately assess witness credibility, citing cases finding that remote depositions offer a better opportunity to assess witness credibility because the witness would be required to wear a protective face mask during an in-person deposition. While the construction company lost their bid to force an in-person deposition, the company avoided sanctions by properly requesting a protective order.
Many litigators believe that remote depositions are cost-effective because all expenses related to travel are eliminated. In the Mosiman case, the construction company argued that a remote deposition would still be more expensive because it would take longer to complete than an in-person deposition. The court rejected this argument, finding that any additional costs (due to added deposition time) could be effectively mitigated if counsel shared documents ahead of time and participated in remote deposition training sessions. The court’s order included a remote deposition protocol setting out the process must follow when introducing documents during the deposition.
Similarly, the court in United States ex rel Adams v. Remain at Home Senior Care LLC, No. 17-CV-01493 (D.S.C., March 8, 2021), granted the plaintiffs’ motion for a remote deposition, finding that the defendant had failed to demonstrate it would be prejudiced if the deposition was not conducted in-person. Along the way, the court turned back defense arguments asserting “Zoom fatigue,” technological difficulties, and anticipated difficulties managing documents to be offered during the deposition. Again, the defendant avoided sanctions but was required to appear for a remote deposition.
Preparation Is the Solution
The message from these rulings — and dozens of similar outcomes — seems clear. Courts are highly confident in videoconferencing technology, and in the ability of attorneys and witnesses to effectively use it with training, as a means to conduct remote depositions and move litigation forward during the COVID-19 pandemic. Due to emergency orders in place across the country, many courts have limited discretion to impose an in-person deposition upon an unwilling party.
Against this backdrop, a party’s failure to appear for a deposition can be disastrous. Whatever grounds a party might have for opposing the time, place, or manner of a properly noticed deposition, that party has just three options: negotiate with the opposing party, file a motion for a protective order, or show up prepared and ready to proceed.
1. Many states have a Rule 37 equivalent that would similarly punish a no-show party. See, e.g., O.C.G.A. § 9-11-27 (2010); Fla. R. Civ. P. § 1.380 (2019).
2. Many states have a Rule 26 and 45 equivalent that provide for similar protective orders. See, e.g., O.C.G.A. § 9-11-26 (2010); O.C.G.A. 9-11-45 (2010); Fla. R. Civ. P. § 1.280 (2019); Fla. R. Civ. P. § 1.410 (2019).