The conclusion of the baseball season is an apt occasion to reflect on the wisdom of New York Yankee great Yogi Berra’s remark, “You can observe a lot by watching.” What Berra meant to say, we imagine, is that close observation of anything will yield valuable insights and strategic advantage over inattentive participants in the same endeavor.
Nowhere is this more true than in courts that follow the common law tradition, where precedent creates authoritative rules and where one litigant’s misfortune is a subsequent litigant’s roadmap to success. A trio of recent California appellate court rulings where misbehavior during the discovery deposition process resulted in terminating sanctions nicely illustrates the point.
Unwilling Versus Unable
In the first case, the plaintiff in a legal malpractice action had missed so many depositions that the trial court decided that only terminating sanctions would provide the defendant with an adequate remedy. The appellate court, in Memarzadeh v. Cohen, Nos. B327967 etc. (Calif. Ct. App., 2d Dist., Sept. 23, 2024), noted that the plaintiff, citing medical restrictions, had missed several noticed depositions as well as a final, court-ordered deposition without an adequate justification. Additionally, the plaintiff failed to seek judicial relief from the depositions or offer any alternative dates.
Terminating sanctions can be imposed based on a series of minor discovery violations that while trivial, in total, convince the trial court that no sanction less than dismissal will secure compliance with deposition court rules.
Regarding the final, court-ordered deposition, which the court allowed to be conducted remotely, the plaintiff offered two reasons for non-compliance: first, he refused to agree to the privacy policies of the videoconferencing platform provider, which he contended allowed the provider to obtain and disseminate his private information; second, he alleged that he lacked the necessary technology to participate in a remote deposition. These justifications failed to impress either the trial or appellate court.
As for the plaintiff’s claims that his medical condition prevented him from sitting for a deposition, the appellate court remarked: “The evidence in the record indicates [plaintiff] repeatedly refused to sit for any type of deposition, and continually came up with varied excuses for doing so. At no point prior to the terminating sanction did he present evidence that he was medically unable to participate in a deposition by videoconference or recorded on video.”
Be Cooperative, Not Obstructive
In Zinni Media Concept Ltd. v. Mayweather, B334403 (Calif. Ct. App., 2d Dist., Aug. 27, 2024), American boxer Floyd Mayweather Jr. proved difficult to corner when it came to his own deposition in a lawsuit brought against him by a promoter. After a number of unsuccessful attempts to secure from Mayweather’s counsel dates when Mayweather could sit for a deposition, the plaintiff’s counsel issued an ultimatum: if Mayweather did not provide deposition dates by cby a date certain, then the plaintiff would file a motion to compel. That date came and went without a response from Mayweather.
Eventually, and at the plaintiff’s request, the trial court imposed terminating sanctions in the form of a default judgment against Mayweather. This was an expensive sanction too. At a subsequent hearing, the trial court ordered Mayweather to pay damages of $2.3 million.
Litigation misbehavior cited (with disapproval) by the appellate court included Mayweather’s:
- failure to make a written objection to the deposition,
- failure to request an order staying the deposition,
- failure to seek to quash the deposition, or
- failure to obtain a protective order.
The appellate court ruled that the trial court’s order of terminating sanctions was not an abuse of discretion. It noted that prior court-imposed monetary sanctions had failed to secure attention to his obligation to sit for a deposition. The appellate court also pointed to Mayweather’s telling admission on appeal that he would have sat for the deposition if he knew that failure to do so would result in a default judgment against him. This, the appellate court said, demonstrates that the only sanction that would have gotten Mayweather’s attention was default.
Create a Record That Supports Relief
In Albinali v. Calvert, No. B331322 (Calif. Ct. App., 2d Dist., June 28, 2024), the plaintiff committed numerous acts of pretrial discovery misbehavior until, like the proverbial straw that broke the camel’s back, her ultimate act of failing to appear for a final status conference prompted the trial court to dismiss her complaint.
The plaintiff argued on appeal that the trial court committed error by dismissing her complaint solely due to her failure to pay monetary sanctions for a discovery violations. The appellate court said it was unable to discern whether the failure to pay monetary sanctions was, in fact, the reason why her case was dismissed. This was because the record on appeal did not contain court reporter transcripts for any of the hearings held on contested discovery issues. “The record is also devoid of a suitable substitute for those transcripts, such as a settled or agreed statement,” the appellate court remarked.
The appellate court sifted through the record to find several reasons why the trial court might have dismissed the case: her failure to appear at conferences and hearings or participate in joint filings ordered by the trial court; her habit of waiting until the eve of a hearing to procure counsel and then requesting continuances; her misrepresentations in court filings regarding the defendant’s alleged deposition misconduct. “The limited record we have before us illustrates that [the plaintiff] had a long history of delay, obstruction, misrepresentations, and noncompliance with court orders,” the appellate court said.
The appellate court declined to rule on the basis of this conjecture, however. Instead, it affirmed the trial court’s ruling because the record was insufficient to support the plaintiff’s contention that her case had been dismissed due to her failure to pay the monetary sanctions.
Takeaways
So what can be observed from watching these three cases? Several points stand out:
- Litigants challenging a trial court’s decision to impose terminating sanctions must ensure that the trial court record contains all the information necessary to support an appellate court ruling in their favor.
- Terminating sanctions can be imposed based on a series of minor discovery violations that while trivial, in total, convince the trial court that no sanction less than dismissal will secure compliance with deposition court rules.
- Litigants who cannot, for whatever reason, appear for a noticed or court-ordered deposition should file a motion for judicial relief rather than merely fail to appear at the deposition.
- Litigants who claim to be unavailable for a noticed deposition date should, when declining, offer other dates when they will be available.
- Courts will not likely find — in 2024 and beyond — that an alleged lack of necessary technology is an acceptable justification for refusing to appear for a remote deposition.
- Litigants should be aware that, if monetary sanctions fail to coerce compliance with discovery orders, the next order from the court may very well be a terminating sanction.
Finally, we’ve published two popular posts here — Turning Deposition No-Shows to the Client’s Advantage and Skip Your Deposition and Pay the Price? — that address court rulings imposing monetary sanctions for violations of court rules governing depositions.
