{"id":900612,"date":"2022-11-22T16:11:38","date_gmt":"2022-11-22T23:11:38","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=900612"},"modified":"2022-11-22T16:11:43","modified_gmt":"2022-11-22T23:11:43","slug":"deposition-no-shows-client-advantage","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/deposition-no-shows-client-advantage\/","title":{"rendered":"Turning Deposition No-Shows to the Client\u2019s Advantage"},"content":{"rendered":"\n

Avi Stadler | Esquire Deposition Solutions<\/a><\/p>\n\n\n\n

This post is addressed to the attorney who has properly noticed the deposition of an opposing party for but, for some reason, the intended deponent has failed to appear at the appointed time and place. A basketball metaphor comes to mind this time of year: You\u2019ve been fouled, and you step to the line for your two free throws. That said, no points are on the board yet. You\u2019ve got to make the shots.<\/p>\n\n\n\n

An earlier blog post discussed the\u00a0consequences of failing to appear for a deposition<\/a>, with the message that \u201cfailure to appear\u201d is a circumstance that should be avoided if at all possible. A party that fails to appear for a properly noticed deposition needlessly tries the patience of everyone involved in the litigation and, more importantly, risks judicial sanctions that can include dismissal of the absent deponent\u2019s legal claims, monetary sanctions, or striking of a defendant\u2019s affirmative defenses.\u00a0<\/p>\n\n\n\n

When a deponent fails to appear for a properly noticed deposition, the attorney who set the deposition has the responsibility to take whatever steps are necessary to (1) preserve the client\u2019s right to recoup the costs of wasted litigation effort and (2) turn the deponent\u2019s discovery violation into a litigation advantage for the client. This means taking steps to document the absent deponent\u2019s behavior as well as the extent of the resulting harm<\/p>\n\n\n\n

Ready, Camera \u2026 No Action?<\/strong><\/p>\n\n\n\n

When neither the deponent nor deponent\u2019s counsel appear on time for a deposition, most attorneys will wait 20 to 30 minutes before attempting to contact counsel. At this point, it\u2019s advisable to call the counsel\u2019s office or reach out in some other fashion reasonably calculated to obtain a response. For purposes of creating a strong record documenting the deponent\u2019s failure to appear, it\u2019s a good idea for counsel to attempt to contact counsel in writing, even if those efforts are unlikely to be successful.<\/p>\n\n\n\n

Litigators shouldn\u2019t be surprised when a party or witness fails to appear for a deposition. Calls and emails with opposing counsel and the progress (or not) of pretrial discovery efforts leading up to the deposition date usually give the attorney taking the deposition advance notice whether the deponent will appear or not. Forewarned, the attorney who set the deposition should bring materials to the deposition that can be used as exhibits to document the absent deponent\u2019s violation of discovery rules and the extent of the harm caused by the behavior. These materials might include:<\/p>\n\n\n\n