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Deposition Absences: The Consequences of Failure to Appear

Photo of an empty deposition suite, representing the failure to appear for a deposition.

Between court hearings, filing documents, and attending client meetings — it can be difficult to keep track of all your responsibilities as an attorney. While we all try to keep the plates spinning, it’s important not to drop the ball on attending depositions.

In this article, we’ll take a look at some of the consequences for failing to appear in a deposition. Let’s get started! 

Understanding the Risk of Sanctions 

It should come as no surprise that failure to attend a deposition is a reasonable cause for sanctions. In federal cases, Rule 37 of the Federal Rules of Civil Procedure authorizes the court to order any of several punishing sanctions:

  • Treat factual disputes as established in the prevailing party’s favor
  • Prohibit the party who failed to appear from asserting claims or defenses, or from introducing evidence
  • Strike pleadings in whole or in part
  • Stay the case until the deposition is conducted
  • 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

Standards for Remote Depositions

Wondering if skipping your next remote depositions will be treated differently than failing to appear in person? The odds are not in your favor! In this case, you will still be exposed to requests for discovery sanctions and you’ll still need to explain your reasons for noncompliance.

Rescheduling and Deposition Absences 

What happens in situations where you cannot or will not appear on the scheduled date? In Khalaj v. City of Phoenix¹, the plaintiffs repeatedly rescheduled their depositions. After receiving ten different extensions, parties failed to appear on the scheduled date. Plaintiffs’ counsel made no effort to contact the Court to seek an order excusing Plaintiffs’ absence. Instead, Plaintiffs simply did not appear. After examining the evidence, the Court granted the Defendant’s motion for sanctions because the plaintiffs had an obligation to seek court intervention when it became clear their clients would not be attending.

The bottom line: any properly noticed deposition should be considered absolutely mandatory. While you may be open to rescheduling or even actively trying to find an alternate date, you’ll still be vulnerable to sanctions. In fact, the Ninth Circuit has explicitly held that sanctions against a party for failing to appear at a deposition were appropriate, even when the opposing counsel was willing to reschedule the deposition and when the party’s deposition was ultimately taken.

The Safe Haven of Protective Orders

So, are there any options available for someone who truly cannot attend a deposition through no fault or bad faith of their own? If you’re well-prepared, there can be!

In order to avoid sanctions for the absence, counsel needs to request a protective order under Rule 26 of the Federal Rules of Civil Procedure, which states that courts “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” 

Ultimately, Courts have wide latitude for determining ‘good cause’ during pretrial discovery. Obtaining a protective order will be based entirely on the specific facts of your case and the circumstances of your upcoming absence.   

Final Thoughts

Thanks for reading! We hope we’ve been able to give you a glimpse into the risks and potential consequences of failing to appear for a deposition. 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.


Sources

¹Khalaj v. City of Phoenix. No. 17-CV-01199 (D. Ariz., Jan. 22, 2021)

If you need deposition services or court reporters, please don’t hesitate to get in touch.
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