In Crandall v. Equinox Holdings, Inc., 2022 NY Slip Op 34161(U), Index No. 157373/2018 (N.Y. Sup. Ct. N.Y. Cty. Dec. 8, 2022) – arising from an alleged sexual assault in an Equinox steam room – the court, inter alia, denied plaintiff’s motion to vacate the Note of Issue, effectively precluding plaintiff from conducting depositions of defendant’s witnesses.
This decision teaches that the failure to comply with court orders has consequences. As litigators often say, the order in this case had “teeth.”
From the decision:
After many, many discovery orders and discovery motions, the Court issued a discovery order dated April 26, 2022 in which it stated that all depositions had to be completed by August 31, 2022. The plaintiff’s deposition was already taken in February 2021. The Court added that the depositions had to be completed absent good cause shown given that this case began in 2018. The Court concluded that “The failure to do any depositions may result in the Court finding that they were waived”.
It is undisputed that plaintiff ignored the Court-ordered deadline and then, a week before the September 22, 2022 conference, he sent out 11 notices of deposition. At this late September conference, plaintiff failed to cite a reasonable excuse for not doing any depositions by the August 31, 2022 deadline. The Court ordered that a note of issue be filed and that the remaining depositions were deemed waived based on plaintiff’s failure to do anything to take these depositions.
Unfortunately, court orders must have consequences especially if there are no ameliorating factors. If the Court were to vacate its order and permit plaintiff to pursue these depositions, then the Court’s orders would have little meaning. A party would know it could choose to ignore a Court deadline and pursue discovery on its own schedule. Moreover, the deadline at issue here did not require a “Herculean” task in order to comply. Plaintiff was given more than four months to do depositions in a case that started in 2018. In fact, the Court’s language specifically stated that depositions would be waived only if no depositions were taken by the deadline. That means that if plaintiff had simply taken, or genuinely attempted to take, a single deposition out of the apparently 11 he now seeks, he would have had a strong argument that he complied. The record shows that not only was a single deposition not taken, but plaintiff did not take a single step to schedule or hold a deposition.
Interestingly, the court observed that the consequences of this order were “not drastic” (i.e., it fell short of striking of plaintiff’s complaint), noting that plaintiff “is only losing the right to depose defendant’s witnesses” and “will still have the right to file or oppose dispositive motions (assuming they are timely) and, potentially, proceed to a trial.”
While it is difficult to discern the court’s tone from these words, being unable to depose an adverse party’s witnesses places one in the unfortunate position of proceeding to trial without knowing how certain witnesses will testify.