The blog post Turning Deposition No-Shows to the Client’s Advantage proved popular with our readers when written (2021!) and for years afterward. The sustained readership of that article is gratifying but also disappointing to the extent it suggests that deposition no-shows are a significant source of concern within the litigation community.
Do Everything Possible to Secure Witness Attendance
This post updates the earlier article with lessons gleaned from recent cases addressing a party’s failure to participate in pretrial discovery in good faith. With these cases in mind, the message for counsel dealing with hard-to-pin-down deposition witnesses can be summed up as follows:
- If at all possible, work out deposition scheduling with opposing counsel
- Document the opposing party’s misbehavior at every opportunity
- Seek judicial assistance early and often
- Be patient and be prepared for pretrial discovery to consume more time and resources than usual
- An opposing party’s misbehavior to hand your client an early, easy courtroom victory only in the most egregious of circumstances
Like it or not, courts are reluctant to dismiss cases on non-merits bases. They expect counsel to work out pretrial discovery issues without judicial intervention. And, when cooperation among counsel fails to yield reasonable outcomes, judicial relief will likely consist of half-measures – orders for the non-cooperative party to submit to a deposition … “or else.” Finally, even the most obstructive party will be able to avoid sanctions by agreeing to discovery at the last moment.
Faced with these realities, the most productive strategy for litigators is to dig in and work things out with opposing counsel.
The following recent cases fairly describe the state of play today:
Case: Cook v. Trimble, No. A24-0864 (Minn. Ct. App., Jan. 13, 2025)
Ruling: Award of monetary sanctions is appropriate based on defendant’s failure to attend remote deposition. Defense counsel who merely informed plaintiff’s attorney on Friday that defendant would not attend deposition scheduled on following Monday did not give adequate notice or proper objection to deposition.
Lesson: Three days’ notice is insufficient when two of those days are Saturday and Sunday.
Case: Amimon Inc. v. Shenzhen Hollyland Tech Co., No. 20-cv-9170 (S.D.N.Y., Jan. 10, 2025)
Ruling: Company official who failed to appear for properly noticed Rule30(b)(1) deposition may not testify in company’s defense at trial of trade secret/unfair competition case. Stronger sanctions are not warranted under the circumstances.
Lesson: Even when aggressively resisting pretrial discovery, counsel can avoid the most onerous sanctions by raising objections in a timely fashion.
Case: Step by Step School v. Philadelphia Indemnity Ins. Co., No. 23-2324 (D.N.J., Dec. 19, 2024)
Ruling: Rule 37(d)(1)(A)(i) supplies lawful basis for award of monetary sanctions to remedy plaintiff’s failure to appear for four properly noticed depositions.
Lesson: A pattern of obstructive behavior is far more likely to draw sanctions than a single missed deposition.
Case: Rittmann v. Amazon.com Inc., No. C16-1554 (W.D. Wash., Dec. 18, 2024)
Ruling: Five opt-in plaintiffs who failed to appear for properly noticed depositions are dismissed from putative class action.
Lesson: Plaintiffs who fail to participate in pretrial discovery, without justification or objection, are at great risk of having their claims dismissed.
Case: Aldridge v. Ramey, No. 22-cv-582 (W.D. Ky., Dec. 11, 2024)
Ruling: Monetary sanctions are not appropriate against witness who failed to appear for deposition, in view of fact that relevance of witness testimony was not established and party seeking sanctions did not comply with Rule 37 “meet and confer” obligations.
Lesson: The key to obtaining relief when the opposing party fails to appear at a deposition is to take care that (1) the deposition is properly noticed and (2) the party seeking sanctions has done everything possible to obtain the deposition before seeking judicial assistance.
Merely noticing a deposition and hoping (or expecting) the witness will appear is not a promising formula for success. Instead, litigators should lay the groundwork for pretrial discovery success by fostering a professional, constructive relationship with opposing counsel and by formalizing discovery and case management needs as early in the case as possible.
When these understandings break down, as in the case of a deposition no-show, the attorney who set the deposition has the responsibility to take whatever steps are necessary to
- preserve the client’s right to recoup the costs of wasted litigation effort; and
- 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.
The Case of the Missing Witness
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 of 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:
- The deposition notice (or subpoena in the case of a nonparty witness)
- The accompanying proof of service
- Any 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 could also be brought to the deposition.
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.
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).
The attorney should attach as exhibits all supporting documents on hand, including the notice of deposition, proof of service, and communications among counsel.
Finally, when preparing a motion for sanctions, counsel should be aware that while Rule 37 (Failure to Make Disclosures or to Cooperate in Discovery; Sanctions) of the Federal Rules of Civil Procedure provides the principal source of authority – in the federal system – for an award of sanctions, there may be other avenues for judicial relief. For example, Rule 41 (Dismissal of Actions) may support requests for relief in cases where plaintiffs file suit but refuse to participate in discovery. Professional ethics codes are another source of law that may, in an appropriate case, be available to reign in failures to participate in pretrial discovery in good faith. Lastly, many courts claim an “inherent” or “supervisory” power to administer justice in instances where the law is silent or unclear. This source of authority may provide an opportunity for relief if, in the case at hand, no federal rule squarely applies.
