LIVE AS IF YOU WERE TO DIE TOMORROW. LEARN AS IF YOU WERE TO LIVE FOREVER (GANDHI)
Monday, June 11, 2018
Question of the day for June 12, 2018
If you have properly noticed the deposition of the opposing party and neither the party nor his counsel shows up at the deposition and did not contact you to explain their absence, what should
you do?
Before immediately jumping to any conclusions, I would probably attempt to reach out to opposing counsel via phone and/or e-mail to make sure there was not an emergency or some other justified reason for not attending. If there was not a justified reason for not attending, or opposing counsel refuses to communicate with me about it, I would file a Statement of Discovery Issues/Motion to Compel. I would also ask the court to award sanctions for their non-attendance - including attorney fees and any court reporter costs that my client had to incur as a result.
Attempt to contact the opposing counsel to see if there was a reasonable misunderstanding or emergency situation that precluded their appearance. Then talk to the court about getting a motion to compel and possibly sanctions to cover costs.
I would contact the opposing party as well. I would try and renegotiate a time that would work for us all to meet. After that, I would go the Court with sanctions so that I could get the time paid for by the opposing party. If they refuse to work with me, then I would subpoena the witness to show the next time. If the witness does not show then I can invoke the sanctions along with violating a subpoena agains the witness and go from there.
Contact opposing counsel. Find out why they didn't attend the deposition. Simply reschedule the deposition if they had a legitimate reason not to attend. If the opposing counsel does not return your phone calls or did not have a valid excuse for not attending, then read FRCP 37 and file motion to compel and ask for sanctions to cover your reasonable costs, expenses and attorney fees incurred.
Contacting opposing counsel is the first step, since courts prefer working out discovery issues between parties. The two main concerns are rescheduling the depo and recouping expenses and fees. If the opposing party is unwilling to cooperate, then I would involve the courts.
I'm not sure if a motion to compel is the right motion, since 37(a)(3)(B)(i) talks about a deponent failing to answer a question, and this is a situation where the deponent failed to appear. 37(d)(1)(A)(i) does allow me to pursue sanctions regardless of the reason for failing to appear so long as I conferred with opposing counsel in good faith to resolve the issue.
Before immediately jumping to any conclusions, I would probably attempt to reach out to opposing counsel via phone and/or e-mail to make sure there was not an emergency or some other justified reason for not attending. If there was not a justified reason for not attending, or opposing counsel refuses to communicate with me about it, I would file a Statement of Discovery Issues/Motion to Compel. I would also ask the court to award sanctions for their non-attendance - including attorney fees and any court reporter costs that my client had to incur as a result.
ReplyDeleteAttempt to contact the opposing counsel to see if there was a reasonable misunderstanding or emergency situation that precluded their appearance. Then talk to the court about getting a motion to compel and possibly sanctions to cover costs.
ReplyDeleteI would burn their building down.
ReplyDeleteJust kidding ;)
I would contact the opposing party as well. I would try and renegotiate a time that would work for us all to meet. After that, I would go the Court with sanctions so that I could get the time paid for by the opposing party. If they refuse to work with me, then I would subpoena the witness to show the next time. If the witness does not show then I can invoke the sanctions along with violating a subpoena agains the witness and go from there.
Contact opposing counsel. Find out why they didn't attend the deposition. Simply reschedule the deposition if they had a legitimate reason not to attend. If the opposing counsel does not return your phone calls or did not have a valid excuse for not attending, then read FRCP 37 and file motion to compel and ask for sanctions to cover your reasonable costs, expenses and attorney fees incurred.
ReplyDeleteContacting opposing counsel is the first step, since courts prefer working out discovery issues between parties. The two main concerns are rescheduling the depo and recouping expenses and fees. If the opposing party is unwilling to cooperate, then I would involve the courts.
ReplyDeleteI'm not sure if a motion to compel is the right motion, since 37(a)(3)(B)(i) talks about a deponent failing to answer a question, and this is a situation where the deponent failed to appear. 37(d)(1)(A)(i) does allow me to pursue sanctions regardless of the reason for failing to appear so long as I conferred with opposing counsel in good faith to resolve the issue.