Friday, September 12, 2014

Beware of Last-Minute Cancellation of Depositions

Last-minute cancellations of depositions are common, perhaps too common, in the practice of law.  Most of us have been the victim of such actions but, then again, most of us have also had occasion to make such last-minute requests for a rescheduling of a deposition.

Sometimes the cancellation of depositions is done nonchalantly by one or even all attorneys involved and without due consideration for the opposing counsel or the deponent.

With respect to the deponents, most of whom are unfamiliar with the litigation process, they may have taken off of work and/or went through much trouble to make arrangements for the care of their children for the deposition. 

Moreover, a cancellation of a deposition surely must be frustrating and taxing upon the deponent who was likely extremely nervous and filled with dread for the extended period of time leading up to a long-scheduled deposition only to learn that at the last minute that it will be rescheduled and the nervousness and dread will continue for another cycle.

The issue of whether a last-minute cancellation of a deposition is sanction-worthy was recently addressed in the Lackawanna County Court of Common Pleas.

In his recent Opinion in the case of Euceda v. Green, No. 2013-CV-3373 (C.P. Lacka. Co. Aug. 20, 2014 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed an appeal by a Defendant obstetrician and his counsel in a malpractice action from the Lackawanna County Court of Common Pleas special trial master’s imposition of monetary sanctions of $1,000.00 as a result of the defense counsel’s allegedly late cancelation of the Plaintiffs’ depositions that were scheduled by defense counsel.   

In his Opinion, Judge Nealon noted that, once a party or lawyer notices a deposition pursuant to Pa. R.C.P. 4007.1, that lawyer assumes a duty under Pa. R.C.P. 4019(e) to promptly notify all other counsel and parties of the cancellation of that deposition before those individuals have incurred travel and pre-deposition preparation expenses.

Rule 4019(e) provides that, if the party who schedules "a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party given the notice to pay to such other party the amount of the reasonable expenses incurred by such other party and his or her attorney in so attending, including attorney’s fees."

In his Opinion, Judge Nealon also sited to Article II (17) of the Pennsylvania Code of Civility which provides that "[a] lawyer should demonstrate respect for other lawyers, which requires that counsel be punctual in meeting appointments with other lawyers and considerate of the schedules of other participates in the legal process…."

In this matter, Philadelphia Plaintiff’s counsel confirmed by email late in the morning of April 29, 2014 that the Plaintiffs’ noticed depositions would proceed the following day in Scranton as scheduled by defense counsel. 

According to the Opinion, defense counsel unilaterally cancelled the depositions later in the afternoon of April 29, 2014 almost three (3) hours after receiving the email confirmation from Plaintiffs’ counsel that the depositions would go forward as planned.   Upon being notified of defense counsel’s cancellation of the depositions, Plaintiffs’ counsel immediately contacted defense counsel’s office and requested that the depositions proceed as scheduled in light of the fact that the Plaintiffs and their counsel had already completed their travel and were already located in Scranton. Defense counsel declined to proceed with the depositions.  

Judge Nealon concluded that, since it was reasonably foreseeable to defense counsel that Plaintiffs’ counsel would travel to Scranton to prepare Plaintiffs for their depositions prior to the time that defense counsel notified the Plaintiffs of the cancellation of those depositions, the award of counsel fees and travel expenses to the Plaintiffs was warranted under Rule 4019(e).

Accordingly, the judge affirmed the special trial masters’ sanctions order but increased it to the amount of $1,347.30 to reflect the full amount of reasonable counsel’s fees and travel expenses incurred.

Judge Nealon concluded his Opinion by denying the Plaintiffs’ cross motion for additional sanctions relative to the appeal.
Anyone wishing to review Judge Nealon's Opinion in the Euceda case may click this LINK.

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