We’ve written previously about sanctions that trial courts can impose on parties that, for no good reason, fail to appear for a properly noticed deposition. Courts are understandably impatient with parties that throw sand in the gears of the civil justice process by refusing to participate in good faith with pretrial discovery processes. Deposition no-shows waste the time of busy professionals and deny all parties their right, under the federal rules, to the “just, speedy, and inexpensive determination” of the case.

The failure to participate in good faith in pretrial discovery processes – particularly depositions, where all other parties to the litigation have set aside valuable time to prepare and attend – can have significant consequences for both the client and legal counsel.

Available sanctions run the gamut from lenient measures such as an order to appear at a re-scheduled deposition to severe consequences such as dismissal of the action in its entirety – so-called “terminating sanctions.”

There is, however, another type of sanction that is often overlooked: a court order directing the offending party to reimburse other litigants for the costs, including attorney’s fees, of the deposition that would have taken place but for their unjustifiable failure to appear and testify. This blog post discusses a few recent cases illuminating this feature of the federal rules.

In the federal system, the trial court’s authority to impose sanctions for violating discovery orders is found in Rule 37 of the Federal Rules of Civil Procedure (Failure to Make Disclosures or to Cooperate in Discovery; Sanctions). Rule 37(b)(2)(A) specifically mentions the following sanctions permissible court orders:

• designating that contested facts be taken as established
• prohibiting the disobedient party from supporting or opposing designated claims or defenses
• striking, in whole or in part, the disobedient party’s pleadings
• a stay of proceedings until the discovery order is obeyed
• dismissing the action
• rendering a default judgment against the disobedient party

In addition to the sanctions mentioned above, Rule 37(d)(3) authorizes the trial court to order the party failing to participate in pretrial discovery to pay “reasonable expenses, including attorney’s fees” caused by the alleged failure. The court may demand that a party, the party’s attorney, or both, pay these expenses “unless the failure was substantially justified or other circumstances make an award of expenses unjust.”

In Stephens v. TTH Transport LLC, No. 22-1084 (May 1, 2024), a personal injury case, the plaintiff noticed the deposition of the truck driver (also a defendant) involved in the vehicle mishap that allegedly caused the plaintiff’s injuries. Not only did the truck driver fail to appear for his deposition, but he also stopped communicating with his attorney and didn’t respond to court orders directing him to justify his behavior and make himself available for a future deposition. Imposing sanctions, the trial court entered judgment against the truck driver and directed him to pay all of the plaintiff’s expenses and attorney’s fees due to his failure to appear for the deposition, including attorney’s fees incurred in preparing the motion for sanctions.

In Faizi v. Temori, No. 22-4224 (N.D. Calif., April 24, 2024), the attorneys and court reporter were online and ready to conduct a properly noticed remote deposition of the defendant. However, an hour before the deposition was schedule to begin, the defendant sent a text message to his attorney claiming that he could not participate due to an “emergency.” The plaintiff’s counsel subsequently filed a motion for sanctions, seeking terminating sanctions under Rule 37(b) and the costs of the ill-fated deposition under Rule 37(d).

The court’s resolution of the plaintiff’s sanctions motion contains lessons for anyone seeking similar relief in the wake of a deposition that failed to occur due to deponent misbehavior. First, the court denied the request for terminating sanctions because the plaintiff failed to re-notice the deposition, failed to negotiate with opposing counsel on a new deposition date, and failed to produce evidence suggesting that the defendant’s failure to appear at his deposition was due to willfulness, bad faith, or fault on the defendant’s part.

As for the request under Rule 37(d) for costs and attorney’s fees, the court faulted the plaintiff for not sufficiently explaining the particulars of the fee request, and for not attempting to re-schedule the deposition. However, the court was more sympathetic with the plaintiff’s request for $750 owed to the court reporting service. Because the defendant’s failure to appear for his deposition was “not substantially justified,” the court ordered the defendant to pay the court reporter costs.

Finally, in Victualic Co. v. HiTherm LLC, No. 21-5077 (E.D. Pa., March 28, 2024), the trial court was asked to impose sanctions arising from the failure of one defendant employee to appear for his deposition and the failure of another defendant employee, a corporate representative witness, to prepare for the topics he knew would be discussed at the deposition. According to the court’s view of the record, the depositions had been difficult to schedule; one of the deponents informed the plaintiffs he would not be able to attend a deposition set for two days’ later.

Looking over the record, the court was sympathetic to the plaintiff’s request for sanctions under Rule 37. And it was critical of defense counsel’s failure to have its witnesses prepared and ready for their depositions. “At best, defense counsel’s inability to produce Mr. Casals represents a failure to discuss the witness’s circumstances and needs until the very last minute, depriving [the plaintiff] of key testimony and imposing on it needless costs,” the court wrote. “At worst, it represents gamesmanship that sought to shield Mr. Casals from being deposed until it became more favorable than not. In either case, it was misconduct for defense counsel to spring Mr. Casals’s non-appearance on [the plaintiff] at the last minute and after significant negotiation between the parties and the Court as to the deposition schedule for the week of August 22, 2022.”

The court ordered the defendants and their attorneys to pay the plaintiffs all reasonable expenses and attorney’s fees stemming from the two failed depositions. It also ordered the defendants and their attorneys to reimburse the plaintiffs for the costs of filing – and arguing – the motion for sanctions.

Fortunately, these cases are the exception, not the rule. Nearly all litigators are civil, professional, on time, and prepared for the deposition. However, as these cases show, the failure to participate in good faith in pretrial discovery processes – particularly depositions, where all other parties to the litigation have set aside valuable time to prepare and attend – can have significant consequences for both the client and legal counsel.