Developing Risk Management Issue: Lawyers Can Be Held Responsible For Their Client’s Failure To Appear At Deposition
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:
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Treat factual disputes as established in the prevailing party’s favor.
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Prohibit the party who failed to appear from asserting claims or defenses, or from introducing evidence.
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Strike pleadings in whole or in part.
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Stay the case until the deposition is conducted.
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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.