Deposition Scheduling Shenanigans, Part 1

Is it really that hard to cooperate when scheduling depositions?  Usually not, but it can be when someone decides they want to prove a point.  There is a time and place for most things,[1] but when evaluating whether it is the time and place to stop cooperating on deposition scheduling, remember pay back is a risk.  Below is an example from a case I handled.

Timeline of Events

  • Day 1 (not the first day of case, but the first day in the relevant sequence of events):  Plaintiff e-mails and requests the depositions of four employees.
  • Day 8: We respond that we are working to obtain their availability.
  • Day 12:  We respond with availability for all four, proposing the depositions for days 45, 49, 50, 55, or 56.  Plaintiff responds these dates are insufficient because expert disclosures are due day 79, so the depositions will be unilaterally noticed.  To address Plaintiff’s concern, I propose extending discovery 30 days to allow additional time for expert disclosures and completing the requested depositions.  Plaintiff agreed and a stipulation was circulated.
  • Day 16:  I receive four deposition notices unilaterally scheduling the four employees’ depositions for day 36, which was not among the dates we proposed.  The depositions were scheduled for 9:00, 10:00, 2:00, and 3:00.  The notices were sent after we agreed to extend discovery. This development perturbed me, so I unilaterally noticed Plaintiff’s deposition for day 31.
  • Day 19: Court approves discovery extension.
  • Day 23: Plaintiff received my deposition notice, objects that she is not available on day 31, and proposes alternative dates for her deposition.  I respond that because Plaintiff noticed the four employee depositions on a date not even previously discussed, “my client and I scrambled to re-arrange schedules in order to make the employees available on dates that none of us were actually available. I was, and remain, frustrated by your office’s decision as it caused unnecessary problems for me and my client.”  Plaintiff responds that the notice setting her deposition “did not provide sufficient time for my client and I to coordinate our calendars for prep and the appearance so we will not be able to attend.”
  • Day 25:  I remind counsel “you are asking for a professional courtesy that was denied my clients. They and I scrambled to rearrange our schedules to meet the schedule your office chose. Plaintiff can do the same thing. Plaintiff’s deposition will go forward as scheduled, with or without her.”  Plaintiff responded with another objection about scheduling.
  • Day 26:  I respond once more, stating the deposition will not be rescheduled and that I “look forward to Plaintiff’s deposition on” day 31.
  • Day 31:  Plaintiff’s deposition goes forward, she fails to appear.  I call counsel, confirm they are refusing to appear and enter a non-appearance.
  • Day 36:  Employee 1 appears for her deposition at 9:00 a.m.  Plaintiff adjourns it and refuses to proceed with the remaining depositions.

As you might guess, motions followed.  This post discusses my client’s motion to have Plaintiff reimburse it for the cost of the court reporter, videographer, and interpreter whom were hired for the deposition. The next post discusses the employee depositions.

Plaintiff was obligated to attend her deposition absent a protective order.

Rule 30(b)(1) allows a party to depose any person upon reasonable notice.  If a party’s deposition is noticed, she may seek a protective order per Rule 26(c) to determine the time, place, location, and other particulars of a deposition.  Rule 30 does not, by its terms, require that the noticing party confer with opposing counsel before scheduling a deposition.  However, failing failure to meet and confer about deposition scheduling is a factor to consider in whether a protective order is merited.[2]

A party is required to appear for a properly noticed deposition, absent a protective order or an order staying the deposition.[3]  “[I]t was incumbent on [the party whose deposition was noticed] to move for a protective order if the date was not acceptable. He did not have the option of sitting back, failing to appear, requiring plaintiffs to take action, and then (and only then) crying foul to the Court.”[4]  Plaintiff here did not seek or obtain a protective order.

  • The deposition notice was valid.

A deposition “notice must state the time and place of the deposition and, if known, the deponent’s name and address.”[5] The notice specified the deponent by name, the date, time, and location where it be held, how the deposition would be recorded, and that an interpreter would be provided.

  • Reasonable notice was given.

“A party who wants to depose a person by oral questions must give reasonable written notice to every other party.”[6]  Rule 30 does not define “reasonable written notice.”  “Obviously no fixed rule can be laid down because much will depend on the other circumstances of the particular case.”[7]  “Courts must determine what is reasonable based on the circumstances of each particular case.”[8]  In re Sulfuric Acid Antitrust Litig. noted what might be reasonable in one case could be unreasonable in another.  “Thus, ten business days’ notice would seem reasonable [but] the analysis is necessarily case-specific and fact-intensive. What would be reasonable even in a late stage of a relatively simple case with few lawyers may take on a very different cast where, as here, the case is exceedingly complex….”[9]

This was a slip and fall at a store.  It wasn’t an exceedingly complex mass tort involving hundreds of lawyers and parties like In re Sulfuric Acid Antitrust Litig. Plaintiff had two full weeks to prepare for her deposition, which was reasonable in the circumstances.  This contrasted with Fernandez v. Penske Truck Leasing where, on December 17, Plaintiffs served two depositions notices, for the defendant’s lawyer and the defendant’s Rule 30(b)(6) designee on six topics.  The depositions were scheduled for December 28, presumably because discovery was scheduled to end on December 31.  The court concluded the notice was unreasonable because 1) the depositions were scheduled for December 28; and 2) only two weeks before the close of discovery.  No such concern was present here.  Day 31 was a regular business day and the close of discovery was not a factor.

  • Plaintiff argued she was too busy.

Plaintiff did not dispute the notice itself was adequate.  She instead claimed her failure to attend was justified because she was too busy that particular day.  Yet she did not submit a declaration or affidavit under oath supporting that argument, which tells you everything you need to know.  Further, that excuse appeared nowhere in the pre-deposition correspondence.  It appeared for the first time only in response to the motion for costs.  If Plaintiff was genuinely too busy to attend her deposition, she should have brought it to the court’s attention via a motion for protective order.  As she didn’t, that excuse was waived.

Plaintiff also argued the 15 days of notice before her deposition was unreasonably short.  She didn’t argue a slip and fall case is so complex that she could not adequately prepare to testify, instead only that it was not enough to accommodate her personal life.  She cited not one authority concluding “busy personal life” was justification for skipping a deposition or failing to get a protective order.

The sheer hypocrisy of the argument was astonishing as Plaintiff knew my clients and I were not available on the date that she selected for their depositions.  Yet she noticed the depositions for that date anyway.  My clients followed the rules and rearranged their schedules to accommodate that date instead of seeking a protective order.  Plaintiff could, and should, have done the same thing.

Plaintiff anticipated that response and argued “had no choice but to unilaterally set the deadlines for the deposition of four (4) employees, due to the quickly approaching initial expert disclosure deadline….” However, Plaintiff noticed those depositions on day 16, the day after I accommodated her concern by agreeing to extend expert disclosures by 30 days.  Plaintiff didn’t have a looming deadline, she just decided to be unreasonable.

Plaintiff was ordered to reimburse deposition costs.

The court agreed with me.  “Conveying to opposing counsel an intent not to appear ‘is insufficient to avoid sanctions for a subsequent non-appearance.’”[10]  As to the notice’s timing, the court concluded 15 days was adequate for the circumstances.  “Plaintiff submits that 15 days was inadequate notice to prepare for her deposition, but fails to acknowledge that she noticed the deposition of four of Defendant’s employees with 20 days’ notice.”  My client asked for the costs of the court reporter, videographer, and interpreter who all appeared.  We got them.

What’s the point?

Judges like to complain about the lack of civility in the profession, which is easy to do from a bench and I find akin to asking “can’t we all just get along?”[11]  The judge in this decision dropped a footnote on that point.  “The Court is not impressed by the conduct of either counsel toward the other. This scheduling issue appears to be a result of a ‘tit for tat’ – neither side would accommodate the other.”

Most opposing counsel are reasonably accommodating with extensions and scheduling.  I try to start each file with the assumption that is how things will go.  When that assumption is proven wrong or breached, I generally see two options.[12]  The first is “forgive, but never forget.”  Anger can be self-destructive so let it go, but adjust your tactics accordingly and don’t forget the transgression.  The second option is “eye for an eye.”  While potentially gratifying, this option can lead to a death spiral of unending retaliation.  It should not be the default response, or chosen without rational deliberation.

As you know, I chose the second option here.  I did so because I believed a proportional response was required to remind Plaintiff that scheduling was a two way street.[13]  My response was well within the rules, proportional to the transgression, and the deposition was going to occur at some point anyway.  In the motion that was later filed, the client agreed to only seek the deposition costs, not some more severe sanction.  Ultimately, that strategy worked in this scenario, but there was always a risk it could have escalated.

Just be reasonable and, if that fails, pick your battles carefully.

[1] “There’s a time and a place for everything- and it’s called college.” –Chef, South Park.

[2] See Seabrook Medical Systems, Inc. v. Baxter Healthcare Corp., 164 F.R.D. 232 (S.D. Ohio 1995); Valvida v. KMart Corp., No. 2000/18, 2000 U.S. Dist. LEXIS 23043, 2000 WL 1739215 (D.V.I. June 13, 2000).

[3] Anderson v. Air West, Inc., 542 F.2d 1090, 1093 (9th Cir. 1976); Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964).

[4] Abiola v. Abubakar, No. 02 C 6093, 2007 U.S. Dist. LEXIS 20311, 2007 WL 898197 (N.D. Ill. Mar. 19, 2007); Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., No. 2:05-cv-01532, 2007 U.S. Dist. LEXIS 100969 (D. Nev. Oct. 2, 2007) (same).

[5] Rule 30(b)(1).

[6] Rule 30(b)(1).

[7] 8A C.Wright & A.Miller, Federal Practice & Procedure: Civil § 2111 (1994).

[8] Fernandez v. Penske Truck Leasing Co., L.P., No. 2:12-cv-00295, 2013 U.S. Dist. LEXIS 14786, 2013 WL 438669 (D. Nev. Feb. 1, 2013).

[9] 231 F.R.D. 320, 327 (N.D. Ill. 2005).

[10] Nationstar Mortgage, LLC v. Flamingo Trails No. 7 Landscape Maintenance Assoc., 316 F.R.D. 327, 337, n. 8 (D. Nev. 2016).

[11] No, but I would genuinely like to live in your reality where we all do.

[12] “Be polite, be professional, but have a plan to kill everybody you meet.”  Gen. James Mattis.

[13] The message being we can do this the easy way, or the hard way, your choice.