Mark Twain observed that a man who sets out to carry a cat by its tail will invariably learn a thing or two about consequences. In an order issued on May 5, Magistrate Judge James Francis took that observation to a practical level: “Consequences flow from an attorney’s unilateral decision not to appear for a deposition.”

John Edmonds had noticed Robert Seavey’s deposition for Monday, April 20. But at 5:17 p.m. on Sunday, April 19, Edmonds’ lawyer, M. Douglas Haywoode, sent an e-mail to Seavey’s counsel, M. Darren Traub, advising that the deposition was canceled “due to obstructions in the discovery process.” Edmonds v. Seavey, No. 08 Civ. 5646-HB-JCF (S.D.N.Y. Mem. Op. May 5, 2009). Now, in the day, late Sunday afternoon notice would have been about as effective as the laws posted by Nero at the top of 12-foot-tall pillars; but we live in the age of the BlackBerry and instant access. Traub actually got the message, in real time, and nine minutes later responded (we’re paraphrasing, no doubt unfairly, but words to the effect), “Screw you, we won’t cancel the deposition.” Haywoode lobbed back another link in the e-mail chain, saying (we love to paraphrase), “What part of ‘canceled’ don’t you understand? No deposition tomorrow.” But Traub refused to take canceled for an answer; he and Seavey appeared as originally scheduled the next morning for the deposition. Traub followed Haywoode’s no-show with a motion for sanctions under Fed. R. Civ. P. 30(g), which allows a party to recover reasonable fees and expenses if the noticing party fails to attend and proceed with a deposition as noticed.

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