Turning Deposition No-Shows to the Client’s Advantage

This post is addressed to the attorney who has properly noticed the deposition of an opposing party for but, for some reason, the intended deponent has failed to appear at the appointed time and place. A basketball metaphor comes to mind this time of year: You’ve been fouled, and you step to the line for your two free throws. That said, no points are on the board yet. You’ve got to make the shots.

An earlier blog post discussed the consequences of failing to appear for a deposition, with the message that “failure to appear” is a circumstance that should be avoided if at all possible. A party that fails to appear for a properly noticed deposition needlessly tries the patience of everyone involved in the litigation and, more importantly, risks judicial sanctions that can include dismissal of the absent deponent’s legal claims, monetary sanctions, or striking of a defendant’s affirmative defenses. 

When a deponent fails to appear for a properly noticed deposition, the attorney who set the deposition has the responsibility to take whatever steps are necessary to (1) preserve the client’s right to recoup the costs of wasted litigation effort and (2) turn the deponent’s discovery violation into a litigation advantage for the client. This means taking steps to document the absent deponent’s behavior as well as the extent of the resulting harm

Ready, Camera … No Action?

When neither the deponent nor deponent’s counsel appear on time for a deposition, most attorneys will wait 20 to 30 minutes before attempting to contact counsel. At this point, it’s advisable to call the counsel’s office or reach out in some other fashion reasonably calculated to obtain a response. For purposes of creating a strong record documenting the deponent’s failure to appear, it’s a good idea for counsel to attempt to contact counsel in writing, even if those efforts are unlikely to be successful.

Litigators shouldn’t be surprised when a party or witness fails to appear for a deposition. Calls and emails with opposing counsel and the progress (or not) of pretrial discovery efforts leading up to the deposition date usually give the attorney taking the deposition advance notice whether the deponent will appear or not. Forewarned, the attorney who set the deposition should bring materials to the deposition that can be used as exhibits to document the absent deponent’s violation of discovery rules and the extent of the harm caused by the behavior. These materials might include:

• Deposition notice (or subpoena in the case of a nonparty witness)
• Proof of service
• Prior stipulations or court orders compelling attendance at the deposition
• Correspondence, email messages, texts, and telephone logs regarding the deposition

If the attorney has invoices or other materials that can document the costs incurred attempting the deposition, those should also be brought to the deposition.

Modern deposition practice frequently includes the presence of more than the deponent, counsel and the court reporter. It’s increasingly likely, particularly during the COVID-19 pandemic, that the deposition will be recorded on video or conducted remotely with a videoconferencing platform. Technicians and consultants, litigation support personnel, and additional members of the litigation team are often on hand for depositions, thus increasing significantly the costs of a deponent’s failure to appear.

Counsel should be prepared to document these expenses when a deponent fails to appear — if not at the time of the deposition, then later when drafting a motion to compel or motion for sanctions.

Go on the Record

Once it’s determined that the deponent will not be appearing, the attorney who set the deposition should ask the court reporter to go “on the record” and begin documenting the events that transpired on deposition day. Some attorneys have a no-show deposition script prepared for just this eventuality.

The attorney’s statement should include, at a minimum:

• The names of all attorneys who appeared — in-person or remotely — for the deposition and the parties they represent
• The names of all parties who appeared — in-person or remotely — for the deposition
• The legal authority and/or court rule authorizing the deposition
• The purpose of the deposition 
• The time and date, the fact of the deponent’s nonappearance, and the extent of the attorney’s efforts to contact the deponent or deponent’s counsel and apprise them of the deposition
• An explanation of the steps taken to serve notice of the deposition — as well as any communications that occurred between counsel leading up to the deposition — that show counsel’s good faith efforts to obtain the deponent’s testimony
• A description of the deponent’s proffered excuses for failing to appear for the deposition (remember, this is “free throw”), as well as the deponent’s failure to file for a protective order (if that is in fact the case). 

Finally, the attorney should attach as exhibits all supporting documents on hand, including the notice of deposition, proof of service, and communications among counsel.

Request Meaningful Relief

Having created a record documenting the deponent’s failure to participate in lawful discovery efforts, the attorney who set the deposition is in a strong position to request meaningful relief for the client with the court.

In the federal system, Rule 37 of the Federal Rules of Civil Procedure authorizes the court to impose a wide range of sanctions for a party’s failure to appear at a properly noticed deposition. Per Rule 37(b)(2)(A), sanctions that may be imposed include:

• Treating factual disputes as established in the prevailing party’s favor
• Prohibiting the party who failed to appear from asserting claims or defenses, or from introducing evidence
• Striking pleadings in whole or in part
• Staying the case until the deposition is conducted

Rule 37(d)(3) additionally provides that “the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” (emphasis added) An award of expenses and attorneys’ fees is mandatory — provided that the attorney who set the deposition can create a record rebutting any claim that the no-show was justifiable. 

Although one party’s failure to appear at a deposition will, in most cases, result in an order compelling the deposition, the failure to appear can, in extreme cases, support a motion to dismiss. Dismissal of a claim is, in practice, a sanction of last resort that is imposed only after a long history of failure to participate in pretrial discovery.

An example of the type of obstructive behavior necessary to bring about dismissal of a case for discovery violations can be found in Mendez v. Community Health Clinics Inc., No. 16-cv-00425 (D. Idaho, Feb. 9, 2021). In that case involving a pro se plaintiff who had been given every opportunity to participate in the process, the court held, “Mendez, however, has abused the Court’s kindness or simply ignored the court’s warnings seemingly without regard for any consequences or hoping to rely on his pro se status. The Court’s patience has waned at times, but it has repeatedly given Mendez every opportunity to prosecute his case. But at a certain point, the Court must simply move on.”

Yes, deposition no-shows are an inconvenience for everyone involved. But experienced litigation counsel will view the opposing party’s failure to appear as an opportunity to advance their client’s interests. By creating a strong record of the opposing party’s failure to engage in meaningful discovery, they can improve their chances for discovery in the future, narrow the contested issues in the case, and perhaps set the stage for dismissal of the opponent’s claims entirely.