Section 4.59 Failure to Attend a Deposition

• Library: Discovery 2015

If a party is served with notice that the party’s deposition will be taken but fails to appear, the court may make such orders that are just, including:

· refusing to permit the party to support or oppose certain claims or defenses or to introduce certain matters into evidence;

· striking pleadings, staying proceedings, dismissing the action, or granting a default judgment;

· treating the failure as contempt of court; and

· requiring the party, or the attorney advising the party’s action, to pay reasonable expenses, including attorney fees and court reporter’s costs, caused by the failure to appear unless the court finds that the failure was substantially justified or circumstances make such an award unjust.

See, e.g.:

· Dobbs v. Dobbs Tire & Auto Ctrs., Inc., 969 S.W.2d 894 (Mo. App. E.D. 1998) (dismissing an action because of failure to appear at deposition and failure to comply with order to produce documents)

· Greene Cnty. Realty Co. v. Shannon, 677 S.W.2d 438 (Mo. App. S.D. 1984)

· Smithey v. Davis, 752 S.W.2d 486 (Mo. App. S.D. 1988) (a party’s failure to attend two depositions was “contumacious and calculated to result in delay”)

Counsel should note that, in Smithey, the court rejected the party’s excuse that he lived in Michigan and worked as an over-the-road truck driver; according to the court, he could have moved for a protective order under Rule 56.01(c) to prevent discovery that imposes undue burden or...