27 Aug What If Your Opponent Is a No Show Witness at Deposition?

We have spent the last two weeks discussing the anatomy of a deposition and some of its more challenging aspects, such as how to handle difficult counsel and uncooperative witnesses.  But what do you do if the opponent witness does not appear for the deposition, even though your attorney timely and properly notified your opponent about the deposition?  Was all of the deposition preparation a waste of time and your company’s money?  Do not fear, because you and your company may be able to recoup some of those costs and fees, and even use the absence of your no show witness against him or her in the litigation.

What Your Attorney Should Do If Your Opponent Does Not Show Up for His Deposition

Check To See If the Witness Is On His Way

If the witness is 15 minutes late for the deposition and neither he nor his attorney has contacted your attorney about being late or absent, your attorney should call the defending attorney to ask if the witness is appearing for the deposition and, if so, when the deponent is expected to arrive.  If the defending attorney does not answer the phone, your attorney should (1) leave a voicemail asking her to call your attorney at the deposition room immediately; (2) ask the defending attorney’s secretary whether the attorney and her client are on their way; and (3) send the defending attorney an e-mail asking whether she and her client intend to appear.  If the witness is not represented by an attorney, your attorney should call and email the witness directly to ask whether the witness intends to appear.

Last, your attorney should tell the court reporter and other people in attendance at the deposition that she is trying to contact the defending attorney or witness.

Make a Record Once It Is Confirmed That the Witness Is Not Appearing

If the defending attorney or unrepresented witness states that the witness is not appearing for the deposition, or if your attorney’s efforts to contact them have failed and 30 minutes has passed since the deposition was scheduled to begin, the deposing attorney should ask the Court reporter to “go on the record.”  This may seem odd, but it is very important for your attorney to do this so that he or she can ask the Court for relief in the future.

Once on the record, your attorney should do the following:

• Introduce herself and identify the name of the party she represents
• State for the record
  • The date and time
  • The name and docket number of the case
  • The name of every person who appeared for the deposition, including the court reporter and videographer if applicable
  • That your attorney issued and properly served on every party, including the witness, a deposition notice or subpoena requiring the witness to appear for the deposition
  • The date and time the deposition was noticed to begin
  • That your attorney was not informed before the deposition that the witness would not appear
  • That neither the witness nor his attorney appeared for the deposition or contacted your attorney or any of the other attendees to explain their absence
  • The steps your attorney took to contact the defending attorney or the witness if unrepresented
• Mark as exhibits
  • The deposition notice or subpoena
  • The affidavit of service showing that the deposition notice or subpoena was served on all parties to the case and the no show witness if she was subpoenaed
  • Any relevant written correspondence about the time and place of the deposition
  • Any stipulations or court orders requiring the witness to appear for the deposition
• Ask the people at the deposition if they would like to make a statement on the record
• Reserve all of your and your company’s rights to
  • Notice the deposition for another date and time
  • Move to compel the witness to appear for the deposition
  • Seek sanctions against the witness and her attorney, including reimbursement of the costs incurred in hiring the court reporter (and videographer if used), reserving the conference room and providing refreshments if applicable

Once your attorney has made the record, he or she should conclude the deposition and request a copy of the transcript from the court reporter.

Immediately Attempt to Reschedule the Deposition

After the court reporter, videographer, and other attendees leave the deposition, your attorney should immediately draft a letter to the defending attorney that does the following:

• Seeks an explanation for why the witness failed to appear for deposition
• Encloses a revised deposition notice or subpoena that reschedules the deposition for a specific date and time
• Seeks reimbursement for the costs incurred in setting the first deposition
• Reserves your right to seek sanctions under FRCP / CRCP 30(b) or 37(d)

Your attorney may want to take a less aggressive approach if the no show witness is a “friendly” non-party witness and was subpoenaed to provide helpful testimony to your case.  The approach will depend on the circumstances of the case.

Prepare to File a Motion to Compel or a Motion for Sanctions If the No Show Witness Has No Excuses for Failing to Appear and the Deposition Cannot Be Rescheduled

Once the letter is written, your attorney should gather all necessary information to prepare for drafting a motion to compel or a motion for sanctions against the other side.  This could help you recoup some or all of the fees and costs spent on the first deposition, and potentially advance your case in other ways, such as causing a dismissal of your opponent’s claims/counterclaims against you and your company.

Your attorney should:

• Maintain a record of all phone calls made to the defending attorney and the no show witness immediately after the deposition was scheduled to begin
• Print all emails sent to the defending attorney and the no show witness and their responses
• Keep a file of invoices from the court reporter, videographer, conference room facility and refreshments provider.

If you believe your opponent is litigating unfairly and you want to take a more aggressive approach to your lawsuit, call Edwards Law today for a complimentary discussion about your options.