Episode 72 - Set Your Depositions Unilaterally After Asking for Dates…How Many Times?

In this episode, Jim Garrity tackles a sometimes-sticky question: How many times do you have to ask an opponent or witness for deposition dates before you can just set them unilaterally? Garrity tells you (a) exactly how many times you should ask for dates before you set them without agreement, and (b) exactly what to say.

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SHOW NOTES

Avista Management v. , Wausau Underwriters Insurance Company, 2006 WL 1562246 (M.D. Fla. June 6, 2006) (federal judge ordered lawyers to appear on courthouse steps if needed to play the child’s game “rock, paper, scissors” to settle deposition scheduling dispute)

Auto-Owners Insurance Company v. McFarland Equipment and Construction Company, Inc., et al, 2010 WL 11619040, Case No. 09-0315-KD-N (S.D. Ala. Feb 23, 2010) (order declining to compel parties to informally cooperate in scheduling depositions, noting that movant seeking order compelling adversary to cooperate in scheduling depositions had not actually noticed the depositions, but could do so as allowed by rule even absent cooperation). The Order declining to compel the parties to informally cooperate is CM/ECF Document 27. The motion to compel deposition dates is CM/ECF Document 21. The opposition papers are at CM/ECF Document 23.

Leitzke v. Kelsey Nicole F/V, et al., Case No. 2:15-CV-00439-TSZ (W.D. Wash. April 27, 2016) (plaintiff’s counsel’s “notice of unavailability” did not operate as a moratorium on discovery, and judge would not exclude deposition taken while plaintiff’s counsel was unavailable and could not participate in deposition)

Chenevert v. Liberty Mutual Insurance Company, Case No. 3:15-CV-00046-JJB-EWD (M.D. Louisiana Aug. 6, 2015) (rules do not require that depositions be set on convenient dates, but rather only upon reasonable notice)

Jackson v. Calone, Case No. 2:16-CV-00891-TLN-KJN (E.D. Cal. filed Apr. 28, 2016) (federal judge invited defense counsel to renew motion for “terminating sanctions” where plaintiff would not agree for medical reasons to submit to deposition),  The February 23, 2018 Order is Doc. 135 on PACER in this case. The defendants' original motion for terminating sanctions, which is an excellent source of case law on sanctions against a party who refuses to submit to deposition, is Document 102-1.

Fed. R. Civ. P. 30(b)