Failing to appear for a deposition is a serious misstep for any attorney. The absent party risks judicial sanctions, dismissal of the deponent’s claims, and monetary sanctions. Furthermore, they will surely strain the patience and good grace of other parties! So, what do you do when opposing counsel is absent?
In this article, we’ll take a closer look at how you can leverage deposition no-shows for your client. Let’s get started!
Identifying an Absence
If neither the attorney nor the deponent is present at the deposition start-time, general etiquette is to allow between 15-30 minutes for the participants to arrive before attempting to contact opposing counsel. If you’re unable to reach the counsel’s office or obtain a response, be sure to create clear documentation of your efforts to contact them.
In most cases, a deposition no-show will not be entirely unexpected. In the weeks or months of pretrial discovery, you’ll likely develop some inkling that a party does not intend to appear.
If you suspect that someone will not appear for their deposition, ensure that you bring materials that will allow you to properly document the absence, such as:
- 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 deposition is taking place on a video conferencing platform or in the presence of a videographer, these expenses should also be documented. All material that you can compile at this stage will be useful if/when you file a motion to compel or motion for sanctions.
Updating the Record
When a deponent or attorney misses the proceeding, ask the court reporter to go on the record to document the occurrence. We recommend preparing a no-show deposition script for these circumstances. If you don’t have a script, make sure to note the following information:
- The names of all attorneys and their represented parties
- Names of all parties present
- The purpose of the deposition
- The date and time of the scheduled deposition
- Description of attempts to contact the absent party/the method you used to contact them
- Description of the deponent’s proffered excuses for failing to appear (if any)
- Summary of your efforts to properly notice the deposition
When parties fail to appear for lawful discovery efforts, you are justified in requesting relief. Under federal rules of civil procedure, the court may 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
Lastly, Rule 37(d)(3) 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.”
Thanks for reading! We hope we’ve given you some useful tips that you can use the next time opposing counsel fails to appear. If you enjoyed this article, feel free to share it on social media!
When you plan your next deposition, don’t forget to take advantage of our plentiful deposition tools. We provide services including remote court reporting, concierge remote exhibit management, remote videography, and full-time tech support for your remote depositions, arbitrations, court hearings, trials, and other proceedings.