Deposition Scheduling Shenanigans: Part 2

If you are going to create shenanigans, at least be ready for the deposition.  As the timeline from the first post indicated, Plaintiff noticed 4 employee depositions, began the first one and then adjourned it.  The stated reason was that counsel was surprised to learn that the store had video of the event at issue.  Failing to pay attention may = surprise, but it ≠ excuse.

Plaintiff knew or should have known the video had been produced.

Familiarity breeds contempt and may have played a role in this case.  Since 2011 Plaintiff’s lawyers had sued my client at least eleven times.  I handled five of those matters, and there was video produced in each one.  In fact, one of the prior cases was at the exact same store and had concerned video.

Specific to this case, my client’s first disclosure on 29 days before the deposition scheduling began included still frames from both camera angles that it possessed.  On day 19 (relative to the timeline in the prior post) the client disclosed the videos themselves.  Plaintiff claimed the CD was blank, but did not ever provide a screenshot of the CD’s contents.  Regardless, if that CD did not contain the videos, Plaintiff could easily have notified me that the videos received did not match the still frames previously produced in the case.

Plaintiff claimed my client was hiding video, but its actions did not support that argument.  It disclosed still frames from them and used the videos to prepare its employees for deposition, making them independently discoverable.   These actions indicated my client believed the videos were discoverable and had been disclosed.

Plaintiff moved to compel depositions she hadn’t noticed.

After refusing to go forward with the depositions because of “surprise,” Plaintiff demanded my client pay for the first deposition and provide dates for all four depositions to be reset.  I refused.

Plaintiff responded with a motion to compel.  The first problem was Plaintiff had not issued any new deposition notices for the four employees so there was nothing to compel.  “Making sure that a witness either attends a deposition, or that, if the witness fails to do so, the party who wishes to take the deposition is then in a position to obtain some type of relief …, is a procedure which is completely governed by rule.”[1]  “In order to obtain an order compelling a non-party to appear for a deposition, the party seeking the deposition must not only notice the deposition, but must also properly serve the non-party with a deposition subpoena pursuant to Rule 45.”[2]  “[O]ne would ordinarily expect a motion to compel a witness’ attendance at a deposition to rely on one of two bases for such an order: either that the witness is a party and a proper notice was served, or the witness is a non-party and a proper subpoena was served.”[3]

The four employees were not parties to the case.  “A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. Rather, the employee is treated as any other non-party; before being compelled to testify, he or she must be served with a subpoena….”[4]  “The party seeking to take the deposition bears the burden of establishing the capacity of the person sought to be examined.”[5]  Although the four employees were not subpoenaed, as long as they remained employees, my client did not object to providing them without a subpoena. 

The only remaining question was whether a valid deposition notice has been issued.  Plaintiff did not argue the employees failed to honor their deposition notices for day 36.  She instead argued the employees, through their employer, were refusing to honor a prospective deposition notice that may be issued in the future.  This was inadequate to support a motion to compel.

Bricker v. R&A Pizza, Inc. addressed this issue in a context somewhat similar to this one.  Typically depositions can be scheduled informally, however when informal efforts fail,

counsel should take care to insure that they have either properly noticed a deposition, which includes timely responding to valid objections to any notice previously served, or have obtained a clear agreement about all the essentials of the discovery in question, together with evidence – preferably, or perhaps mandatorily, in writing – of that agreement that can be proffered to the Court. Absent either of these things, a motion to compel will necessarily fail on procedural grounds regardless of whether, as a matter of substance, the discovery is relevant. That is what has happened here.

Bricker denied the motion to compel because, absent a deposition notice, there was nothing to compel.  I argued for the same result.  Plaintiff’s motion to compel was moot, because she had nothing to compel.  Why did this matter?  Plaintiff sought fees and costs per Rule 37(a)(5)(A) if her motion was granted.  But if the motion to compel was procedurally defective, then there was nothing to compel and Rule 37 would not apply.

Plaintiff had ample notice store video existed.

We argued the merits despite the procedural defense because the case needed to move forward. I resisted the four depositions Plaintiff requested.

  • Employee 1’s deposition had been taken.

Employee 1 was deposed, as scheduled, on Day 36.  To put it politely, the transcript at the end of that deposition was abundantly clear there was no stipulation to hold the deposition open and that my client would not make Employee 1 available again, absent a court order.[6]

Rule 30(a)(2)(A)(ii) requires leave of court to reopen a deposition absent a stipulation.  Whether to permit a second deposition is within the discretion of the district court.[7]  Repeat depositions are generally disfavored.[8]  “Absent some showing of a need or good reason for doing so, the court will generally not require a deponent to appear for a second deposition.”[9]  Examples of when a second deposition might be permitted “include: long passage of time with new evidence, new theories added to the complaint, etc.”[10]

There was no stipulation to depose Employee 1 a second time, nor did Plaintiff demonstrate a good reason for one.  Plaintiff convened the deposition and then unilaterally terminated it because Plaintiff asserted she was unaware of the store video.  However, Plaintiff knew or should have known that store video existed well before deposition was convened.  A lack of diligence is fatal to a motion to reopen or extend discovery, and I argued it should also be fatal to a motion seeking a second deposition.

  • Plaintiff had her chance to depose Employees 2, 3, and 4.

I also refused to provide Employees 2, 3, or 4 for a re-noticed deposition.  Rule 26(b)(2)(c) requires the district court to “limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.”  My clients and I were not available for these unilaterally scheduled depositions so we changed our schedules, moved other commitments, and prepared for these four depositions as required.  The witnesses were prepared, appeared, and Plaintiff refused to go forward because of her own lack of diligence.  Plaintiff had ample opportunity to depose these witnesses, but failed to use it.  I argued she did not demonstrate good cause or excuseable neglect that justified a second chance.

Survey Says!

The court generally agreed with my analysis.[11]

The Court finds that Plaintiff should have known that the video at issue was missing from Defendant’s production. On November 3, 2017, Defendant’s initial disclosure indicated that video footage was on [bates number], and produced the video. Then, on December 22, 2017, Defendant’s responses to Plaintiff’s requests for production referred to a video at [bates number].  Further, Defendant produced still frames of the video currently at issue in its initial disclosures. Upon review of the only video footage she was provided, Plaintiff had reasonable notice that secondary video footage which she had not seen existed. In addition, Plaintiff concedes that she could not locate [bates number], yet fails to indicate when she noticed its absence from Defendant’s production, or whether she attempted to obtain it.  In fact, Plaintiff concedes that upon her review of Defendant’s responses to the requests for production that “Defendant merely references [bates number] but included no such production.”

Ultimately the court still allowed Plaintiff to proceed with employee 1’s deposition because employee 1 was anticipated to testify about the video.  However, the court refused to require employees 2, 3, and 4 to appear for deposition because they were percipient witnesses and their testimony did not rely upon the video.

[1] Bricker v. R&A Pizza, Inc., No. 2:10-cv-278, 2011 U.S. Dist. LEXIS 100619 (S.D. Ohio Sep. 6, 2011).

[2] Id.

[3] Id.

[4] Karakis v. Foreva Jens Inc., No. 08-61470, 2009 U.S. Dist. LEXIS 6356 (S.D. Fla. Jan. 19, 2009).

[5] Id.

[6] I was none too happy when that deposition ended.

[7] Dixon v. Certainteed Corp., 164 F.R.D. 685, 690 (D. Kan. 1996).

[8] Id.

[9] Id.

[10] Graebner v. James River Corp., 130 F.R.D. 440, 441 (N.D. Cal. 1989).

[11] I should have gone to Primm and bought a Powerball ticket.