Commercial Litigation and Arbitration

Counsel’s Undisclosed Change of Flight Plans, Requiring Opponent to Split Deposition into Two Days, Constitutes “Impeding, Delaying, or Frustrating” Deposition within Fed.R.Civ.P. 30(d)(2), Triggering Award of Attorneys’ Fees and Costs

From Campos v. MTD Prods., Inc., 2009 U.S. Dist. LEXIS 63846 (M.D. Tenn. July 24, 2009):

While the record does not indicate that [defense counsel] acted intentionally or maliciously ..., he was careless and discourteous. Most notably, when his plans changed and he needed to change his flight out of San Antonio, [he] apparently made no allowance for how this change of plans would affect Dr. Smith's deposition, even though the new 4:31 p.m. flight time made it impossible, without considerably moving up the start time of the deposition, to complete Dr. Smith's seven-hour deposition in one day. It remains hard to understand why, in light of the repeated conversations with plaintiff's counsel about the length of the deposition, [he] did not communicate with plaintiff's counsel about his change of plans until after the deposition was underway. If he had simply spoken up earlier, in all likelihood, a resolution satisfactory to all parties could have been worked out.

Defense counsel's conduct qualifies as "impeding, delaying, or frustrating" the examination of Dr. Smith such that certain expenses and fees should be awarded. Again, while the record does not reveal intentional or malicious conduct by [defense counsel], such conduct is not required in order to award these fees and costs under Rule 30(d)(2). See Zamorano v. Wayne State Univ., 2008 WL 3929573, *5 (E.D. Mich. Aug. 22, 2008) (citing Rule 30(d)(2) and awarding "reasonable attorneys' fees and costs" associated with the second depositions of witnesses when the first depositions were interrupted by what, after a careful and close consideration of the issue, the court concluded was an improper invocation of the attorney/client privilege); FCC v. Mizuho Medy Co, Ltd., 2009 WL 1707937, *5 (S.D. Cal June 15, 2009)(applying Rule 30(d)(2) and stating, "because FCC caused the need to continue the deposition, FCC should bear the costs of resuming the deposition.").

Given that the costs associated with the second day of Dr. Smith's deposition could have been avoided had [defense counsel] acted with due care, it is fair to award the plaintiff costs exclusively associated with that second day of deposition.

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