No, the Solar Eclipse Is Not a Good Reason to Skip a Deposition

By Fiona Ong - Shawe Rosenthal LLP

May 10, 2024

Last month, many of us took a few moments out of our day to view the solar eclipse (with the proper eyewear, of course – which made me wonder about the workers’ compensation liability for eye injuries incurred from deficient protection during “watch parties” at work – but I digress). As you’ve no doubt heard, there are even some folks who will travel in order to experience “totality.” I’m sure work productivity across the nation took a bit of a hit that day. But what is not ok is to totally blow off a deposition in order to chase the eclipse – which is what happened in a discrimination case.

On the day of the eclipse, the employer’s corporate representative (who traveled to Tampa for the deposition) and attorneys waited for the plaintiff and his attorney to show up for the plaintiff’s deposition – notice of which had been served two months earlier. And waited. And finally called the attorney, who was out of the office – but not on his way to the deposition. Nope, he was in Arkansas, basking in the path of totality.

Understandably, the employer and its attorneys were pretty livid, particularly because this followed multiple instances of the attorney missing deadlines and failing to comply with court orders. Although the attorney had already agreed to pay the court reporter’s fees and travel costs for the employer representative, the employer and its attorneys didn’t think that was enough. So, the employer filed a motion to dismiss the case as a sanction for the attorney’s repeated and shady discovery and compliance failures.

For those of you non-attorneys, there are rules for how a lawsuit must proceed, and penalties for parties/attorneys who fail to follow those rules. Minor or inadvertent failures will result in little to no penalty. Repeated, willful, and/or major failures draw heavier ones. And dismissal of a plaintiff’s lawsuit is the strongest possible penalty – but it occurs very rarely (and I previously blogged about one such instance, where the plaintiff willfully destroyed relevant evidence).

In this case, the Court ultimately decided not to dismiss the case “yet,” because it found that the failures were more negligent than willful. But the Court did order the plaintiff’s attorney to pay the employer’s attorneys’ fees and expenses associated with the motion for sanctions. And the Court warned the plaintiff and his attorney that, “If this pattern of noncompliance with court orders— coupled with [plaintiff’s] other discovery-related failures — continues, such conduct will result in dismissal because it evidences willful contempt for court orders.”

So there are lessons here for both parties and attorneys. For employees and employers, make sure you hire a good attorney – one who will actually comply with discovery rules and court orders. And for attorneys – pay attention to those rules and orders! Because if you don’t, you may get burned.

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