Magistrate Judge Toliver Sanctions Defendant $7,500 And Precludes Testimony For Failure To Appear For Deposition

On August 8, 2017, Magistrate Judge Toliver issued an Order (available here) in National Urban League v. Urban League of Greater Dallas & North Central Texas. The Order is worth a read as a reminder of some of the bad things that can happen if a party fails to attend its noticed deposition.

In the case, in December 2016, plaintiff noticed the Chairman of defendant’s Board of Directors for a deposition to take place on January 26, 2017, and a Rule 30(b)(6) deposition of defendant to take place on January 27. On January 23, defense counsel asked whether the Chairman’s deposition could be moved to January 27 or later so that the deponent could attend a funeral scheduled for January 25 in Atlanta. After plaintiff declined (but offered to push back the start time of the deposition to accommodate travel back to Dallas from the funeral—an offer defendant refused), defendant moved on January 25 (after defense counsel arrived in Dallas from New York) for a protective order as to the Chairman’s deposition and to quash the Rule 30(b)(6) deposition.

On January 26 (i.e., the next day), Judge Boyle summarily denied the motion, ordered the depositions to proceed as scheduled, and warned defendants that failure to appear would result in sanctions including contempt of court. Neither the Chairman nor a corporate designee appeared for deposition. Instead, on January 27, defendant sought reconsideration of Judge Boyle’s order, which Judge Boyle denied. Plaintiff was thus forced to file its motion for summary judgment without the benefit of the Chairman’s and the defendant’s testimony.

Plaintiff then filed a motion for sanctions, which Judge Toliver granted. Judge Toliver found defendant’s actions willful, and that they did not stem from an inability to comply with the notices and the Court’s explicit order that the deponents appear as directed. Judge Toliver ordered as follows:

  • Defendant was precluded from offering the testimony of the Chairman in any form and on any subject.
  • Defendant was precluded from offering testimony in any form of any witness on the topics listed in plaintiff’s Rule 30(b)(6) deposition notice.
  • Defendant was ordered to pay plaintiff $7,500.50, consisting of attorney’s fees and costs incurred in connection with preparing for the depositions, waiting for the witnesses to arrive, hiring a court reporter, and airfare/hotel expenses.
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