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Chancery Denies Costs for Cancelled Deposition

By Francis G. X. Pileggi, Esq.

Case Financial, Inc. v. Alden, (Del. Ch., Dec. 16, 2008), read opinion here. This Chancery Court decision is in a category of those that I like to refer to as "useful tools for the toolbox of a litigator." In this letter decision, the court rejected a request to order costs or fees pursuant to Rule 30(g) in light of the absence of a subpoena sent in connection with the notice of a deposition, and the failure of the deponent to  appear--causing wasted costs for out of town counsel to fly in.

Chancery Court Rule 30(g)(2) provides:

If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by an attorney because that party expects the deposition of that witness to be taken, the Court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party’s attorney in attending, including reasonable attorney’s fees.
(Emphasis added).

In this case, the deponent lived in Canada--outside Chancery's subpoena powers, but no Motion for Commission was sent because the deponent had agreed to appear. There was no reason for anyone to think the deponent would not appear. However, at the last minute, after opposing counsel had already flew in from out of state, the deponent cancelled. The court, in the exercise of its discretion, declined to impose costs or fees under the circumstances.

Full post as published by Delaware Corporate and Commercial Litigation Blog on January 12, 2009 (boomark / email).