Lawsuits can be a strange thing; parties seem eager to file them, but everyone complains when it comes to the other side requesting depositions. Moreover, since COVID-19, clients appear to believe now more than ever that they can unilaterally determine when, where and how their depositions are to be conducted. But these unwise efforts are frustrating to the courts, resulting in harsh sanctions such as requesting warrants for arrests, the striking of pleadings, and orders holding their attorneys responsible for the client’s failure to appear.

Courts are not accepting excuses such as “my client cannot appear at her court-ordered zoom deposition because she is in Europe on vacation or having medical treatment”. The pressure of state and federal trial court judges to advance civil litigation in the wake of the prior court closures remains a challenge for counsel. The difficulty in scheduling and rescheduling depositions in many instances is bringing litigation to a halt, which in turn has created a no-tolerance approach to deposition appearances. These scheduling challenges include bloated trial calendars, long postponed vacation plans and instances of medical treatment as well as typical scheduling conflicts. It is also significant to note that litigation strategy considerations might dictate a preference for an in-person deposition, and the opposing party may only agree to a remote deposition, creating disputes which require court intervention to resolve.

Rescheduling is also more difficult lately because most cases have already experienced a year’s worth of continuances and delays, exacerbating an already congested trial docket. These dynamics are creating a logistical nightmare for many law firms, resulting in repeated rescheduling of depositions, or the worst-case scenarios, the failure of parties and key witnesses to appear for the deposition. Obtaining hearing dates has become most challenging, and often the only available times are months in the future. More often depositions are being unilaterally scheduled given impending discovery deadlines. Unfortunately, we are now seeing sanctions imposed by the court for failure to appear at depositions.

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 except on the most compelling grounds. 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.

You can reasonably expect state courts to entertain similar sanctions.

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 best approach under these circumstances to avoid exposure to sanctions for non-appearance 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 as early as possible. A meaningful “paper trail” of communications between counsel is also beneficial.
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.

The instance of courts being asked to issue protective orders to excuse parties from appearing at depositions has increased dramatically. In 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 appear 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 also 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.

Courts Are Highly Confident In Zoom Technology For Depositions  

The message from rulings in Florida state and federal courts is clear: courts have embraced videoconferencing technology, and the ability of attorneys and witnesses to utilize these methods for depositions, hearings and even trials. 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 scheduled and noticed deposition, that party has just three options: negotiate with the opposing party, file a motion for a protective order, or appear prepared and ready to proceed.

How Should Attorneys Counsel Their Clients?

When dealing with a difficult client who refuses to appear at a deposition, the appropriate course of action to avoid a risk management approach is to advise the client in writing on the potential risks of non-appearance including but not limited to sanctions. From a practical standpoint, the attorney should also reference Federal Rule of Civil Procedure 37 on the possible sanctions which may be imposed and explain the exceptional negative impact on they attorney’s representation and their ability to prosecute or defend their case if pleadings are stricken. Many clients do not understand they will not be able to pursue their claims and a judgement in favor of the other party will occur. If a client is a defendant, the striking of their pleadings would necessarily lead to a determination of liability and the client would also be unable to defend against the Plaintiff’s entitlement to seek damages. When faced with the realization that they cannot pursue her damage claim, or cannot defend against liability allegations, these clients often believe that their lawyer did something wrong or could have prevented and/or limited the sanction. Accordingly, the approach detailed above will provide both the attorney as well as their client the best protection in these exceptional circumstances.

As always, if you would like further information on the above topic, or a presentation on this and other topics, Shendell & Pollock would be pleases to do so for your group. For more about the firm, please visit www.shendellpollock.com.
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