The Holiday Gift of Civility

The year-end holidays can be a busy and stressful time for litigators. As the holiday season approaches, family obligations increase. Courthouses are either closed or missing key personnel. A good number of lawyers, rather than take time off during the holidays, find themselves working longer hours in order to meet billable hours quotas or other performance metrics. Lawyers serving clients in retail and travel sectors are busier than ever at year’s end. Across the legal profession, both work and non-work obligations seem to increase exponentially.

It’s a perfect holiday storm. So it shouldn’t be surprising that there is a modest corpus juris addressing pretrial discovery disputes arising from depositions noticed to take place around the Christian holiday of Christmas. None of these disputes involve religious faith; they all arise from the same fountain of grief: depositions set unilaterally on short notice and inflexibility in the face of reasonable demands to put it all off until next year.

Depositions During “Winter Holiday Season”

A leading case on the topic of Christmas season depositions is Fernandez v. Penske Truck Leasing Co., No. 12-cv-00295 (D. Nev., Feb. 1, 2023), where plaintiffs’ counsel, facing a looming discovery deadline, failed to summon the generous spirit people typically associate with the Christmas holiday. On Dec. 17, he served two notices of unilaterally set depositions – one for an attorney on the defense team and another for several as-yet-unidentified corporate representatives. Each deposition was set for Dec. 28. The discovery deadline was Dec. 31.

Depositions set unilaterally on short notice and inflexibility in the face of reasonable demands to put it all off until next year are the fountain of grief behind most holiday-season discovery disputes.

The magistrate judge flagged a number of problems with the timing of these depositions. First, they were “noticed during the Christmas holiday.” Second, they were “scheduled to occur during the winter holiday season.” Third, they were set on a mere 11 days’ notice. Fourth, the depositions were set unilaterally. Fifth, according to the magistrate, the discovery deadline was not an acceptable justification because it had already been extended twice. “Under the circumstances,” the magistrate found, “Plaintiffs did not give the proposed deponents reasonable notice.”

The magistrate had additional coal for counsel’s stocking. He granted the defendant’s motion for monetary sanctions. In addition to the reasons cited above, the magistrate also weighed against plaintiffs’ counsel the fact that he did not reschedule the winter holiday depositions after receiving a prompt objection from the defendants, and the fact that he had not attempted to resolve the matter with opposing counsel prior to filing a motion to compel the depositions.

Depositions During “Christmas Week”

It’s not a federal holiday. It’s not even a religious holiday, but “Christmas Week” is a calendar event for many people. “Christmas Week” is that somewhat elastic period of time before Christmas Day proper when the faithful cheerfully buckle down, roll up their sleeves, juggle social obligations, open their homes to close and distant relatives alike, and generally muddle through multiple twenty-hour days of blessed work-life balance, ad seriatim, until Christmas Day arrives. Some find “Christmas Week” stressful.

In Cox v. Dalton, No. 21-cv-0004 (N.D. W.Va., Dec. 17, 2021), defense counsel asserted that family obligations during Christmas Week supplied good cause for rescheduling depositions that opposing counsel had set during that time. Per the court: “Defense counsel cites a scheduling inconvenience with family gathering during ‘Christmas week.’ Specifically, counsel indicates her children will be gathered in the area. Counsel also offered multiple other dates where this single deposition was not so personally onerous.”

Explaining why he had refused to reschedule the Dec. 22 deposition, opposing counsel pointed out that “Christmas Week” is not a legal holiday. Grinch! The court found counsel’s factually unassailable observation to be neither persuasive nor professional.

The court decided that the exigencies of Christmas Week created good cause for rescheduling the deposition to a more convenient time … “to permit Defense Counsel to spend time with family.” The court said that requiring defense counsel “to decide whether to serve the interests of her clients or spend time with family during ‘Christmas week’” was the sort of discovery “annoyance” prohibited by Rule 26 of the Federal Rules of Civil Procedure. Quoting Pia v. Supernova Media, Inc., No. 09-cv-840 (D. Utah, April 5, 2012), the court remarked that unilaterally scheduling depositions is not an acceptable or professional way to litigate cases.

Depositions During “Holiday Shopping Season”

Many children believe, possibly on the basis of the popular song “The Twelve Days of Christmas,” that the Christmas season comes and goes in a scant dozen days. Partridges in pear trees, leaping lords, piping pipers, and other alliterative gifts are bestowed in a fortnight, and then it’s over. Grown-ups know otherwise, as do officials at Wal-Mart, where the Christmas season apparently lasts two full months.

That’s what defense counsel told the court in Foster v. Wal-Mart Inc., No: 34-2022-00324536 (Calif. Super. Ct., Sacramento Cty, Feb. 16, 2023), explaining why corporate representative depositions of two Wal-Mart officials absolutely could not take place during the months of November or December. These months comprise the “holiday shopping season” at Wal-Mart, which apparently is an all-hands-on-deck working environment at the retail giant. The court found this justification for continuing the depositions to be reasonable given the fact that the case had only recently been filed and no trial date had yet been set. Before leaving the issue, however, the court remarked that the parties’ discovery dispute should have been resolved by counsel, citing local professionalism standards providing that “an attorney should not arbitrarily or unreasonably withhold consent to a request for scheduling accommodations.”

Six Days’ Notice, Four Were Holidays

The case of Hill Holiday Connors Cosmopulos, Inc. v. Greenfield, No. 08-cv-03980 (D. S.C., Feb. 9, 2010), is another where a year-end discovery deadline motivated an attorney to set depositions during the festive month of December. They were set unilaterally. And they were set on six days’ notice.

This was unreasonable, the Hill Holiday court held. In fact, characterizing the amount of notice as six days is too generous. Of the six days between the deposition notice and the deposition date, four of those were essentially holidays: Christmas Eve, Christmas Day, Saturday, and Sunday. “Although there is no hard rule on what constitutes a reasonable amount of notice, the six-day notice in this case was patently unreasonable,” the court declared.

An identical fate awaited plaintiff’s counsel in Van Scoy v. New Albertson’s, Inc., No. 08-cv-02237 (E.D. Calif., March 21, 2011), a case in which he waited until a year-end discovery deadline was a mere 10 days away before filing notices of two depositions to occur before the deadline. Because of the intervening “Christmas holiday weekend,” the deponents had, in reality, a mere three days’ notice of the depositions, the court observed. It concluded that this short notice was unreasonable; also, the discovery deadline did not supply good cause to excuse the lack of reasonable notice.

Bah Humbug

Finally, a case that demonstrates why some litigators find it difficult to ever take a vacation. In Littleberry v. N. Clearing, Inc., No. 5:19-cv-177 (N.D. W.Va., Feb. 3, 2020), the defendant’s attorney unilaterally filed on Dec. 20 a notice to take a medical examination of the plaintiff on Jan. 2 the following year. Careful readers will have already noted that these two dates include Christmas Eve, Christmas Day, New Year’s Eve, and New Year’s Day.

But wait, there’s more. On that year 2019, Dec. 28 was a Saturday and Dec. 29 fell on a Sunday. This works out to less than two weeks’ notice, of which half were either holidays or non-business days.

The plaintiff failed to appear for the medical examination. The reason, according to his attorney, was that the plaintiff was never informed of the examination. According to the court, the plaintiff’s attorney “did not communicate the request to [plaintiff] because he was out of the office over the Christmas and New Year holiday and the medical examination had already passed.”

The court concluded that the client was blameless, but not his attorney. “This Court finds that this was ample time for plaintiff’s counsel to advise defendants’ counsel if plaintiff was available,” it wrote. “Instead, plaintiff’s counsel did not even notify plaintiff, and uses the excuse that he was out of the office for the holidays. This Court finds this excuse to be unacceptable.”

The plaintiff’s attorney argued that he had received unreasonably short notice of the medical examination, but the court was not buying it. When the dust settled on this discovery dispute, plaintiff’s attorney was sanctioned with a $1,000 fine and any other reasonable expenses arising from the attempted medical examination.

The Gift of Civility

The discovery disputes depicted in these cases all arise from the same familiar sources:

• unilateral scheduling of depositions
• insufficient attention to discovery deadlines
• gamesmanship (perhaps)
• unwillingness to accede to rescheduling requests that would have cost nothing to grant

Twenty-five years ago, the American Bar Association’s Litigation Section saw the problem and took steps to encourage goodwill among litigators, despite and notwithstanding the uncharitable feelings that sometimes bloom in contested matters. In Guidelines for Litigation Conduct, they remind litigators that discovery’s processes should be used for discovery’s intended purposes: “We will not use any form of discovery or discovery scheduling as a means of harassment.”

Civility and Professionalism Guidelines, published by the U.S. District Court for the Central District of California, articulate the promise that lawyers “will not serve papers in order to take advantage of an opponent’s known absence from the office or at a time or in a manner designed to inconvenience an adversary, such as late on Friday afternoon or the day preceding a secular or religious holiday.”

In Texas, the Texas Lawyers Creed discourages setting depositions unilaterally: “I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.”

Nearly every jurisdiction in the United States has published similar guides to professionalism and civility in litigation. The American Bar Association has collected many of them here.

This holiday season, why not give the gift the civility? Civility costs little; no batteries or prior assembly required. It’s widely available, never sells out. Civility wears well; it never goes out of fashion. You see civility on all the best litigators, every day, all year long.