Sanctions Awarded for Failing to Appear for Deposition

Due to injuries allegedly suffered in an automobile accident, plaintiff filed suit against the driver, the driver’s employer and insurance company. During discovery, plaintiff sought the deposition of the driver, and the parties mutually agreed upon a date for the deposition. However, the driver failed to appear on the date of the previously scheduled deposition. As a result, plaintiff filed a motion to compel the driver’s deposition, but again the driver did not appear for the deposition.

Next, plaintiff moved for sanctions against the driver for failing to appear for the deposition. The United States Magistrate Judge denied plaintiff’s motion. On appeal to the District Court, however, the Magistrate’s order denying sanctions was overruled. District Judge Lemmon reasoned that the order denying sanctions erroneously relied upon Rule 37(b) of the Federal Rules of Civil Procedure requiring a “meet and confer” certificate. The Court held that Rule 37(d) permits the imposition of sanctions when a party fails to appear for its deposition, and the “meet and confer” certificate is not required. In the end, the Court granted plaintiff’s motion for sanctions and prevented the driver from testifying at trial.

Steel v. ARI Mut. Ins. Co.