It has long been the case that courts have been empowered to punish persons who fail/refuse to appear for depositions that have been properly noticed.
What happens if a witness doesn't appear at a deposition?
It has long been the case that courts have been empowered to punish persons who fail/refuse to appear for depositions that have been properly noticed. “Punishment” is legally termed “sanctioned.” Further, courts have long been empowered to punish the lawyers of clients and deponents who fail or refuse to appear for their depositions. Now that litigation and court reporting have “entered the era of remote deposition,” it is clear that courts are even more willing to sanction persons (and lawyers) when witnesses fail to appear for depositions.
Excuses for missing a deposition
Honestly, this is not too surprising. Remote depositions eliminate the two standard “excuses” that were once raised to delay and ultimately avoid having to appear for depositions. The usual excuses involved various health reasons and so-called “required” travel in far-flung parts of the country or the world. Those excuses no longer “work” in the remote deposition environment. Travel is no longer a barrier to sitting for a deposition, and even recuperating in a hospital bed is not a complete barrier. Obviously, counsel and courts attempt to accommodate the schedule and convenience of witnesses. But, when it becomes clear that a witness is trying to avoid appearing for a deposition, courts lose their patience.
Why does missing a deposition matter?
For obvious reasons, a witness who fails/refuses to appear is unacceptable. Aside from basic rudeness, failure to appear causes delays in the litigation, which has “ripple effects” on the court system, which is already backlogged. Further, there is the obvious waste of everyone’s time involved in setting up the deposition. This includes those involved in the court reporting/video service and the lawyers who schedule the deposition. Generally, someone is paying for the time spent in the preparation for the deposition, and that money is wasted along with the time.
What happens when a witness is not present?
When a witness fails to appear for his or her deposition, upon request and motion, courts have many possible punishments/sanctions that can be imposed. The least severe sanction is to require the party/witness refusing to appear to pay the costs of the opposing party (and lawyer) caused by the refusal. This generally includes any costs charged by the court reporting/video service, attorneys’ fees for attending the canceled deposition, and preparing the request for sanctions. Courts have inherent authority to impose other sanctions such as:
- Start contempt proceedings against the witness refusing/failing to appear
- Order the witness to appear before the judge -- which could, in theory, involve the issuance of an arrest warrant
- If a party to the case is responsible for the refusal/failure, the court can strike the pleadings of the party responsible, prohibit said party from asserting claims or defenses, prohibit said party from introducing evidence, and/or deem factual matters to be deemed "true and established" against said party
- In some rare and egregious circumstances, courts can dismiss the entire case
Contact Elizabeth Gallo Court Reporting Today
For more information, call the experienced court reporters at Elizabeth Gallo Court Reporting. We follow the best practices in order to provide excellent litigation support to our customers. Contact us today to learn about our services and how we can help you.
