When opposing counsel keeps delaying a deposition, you have a clear escalation path: document every postponement, make a good-faith attempt to resolve it, serve your own deposition notice unilaterally, and move to compel under Rule 37 if the deponent still won’t appear. Federal Rule of Civil Procedure 37 requires the delaying side to pay your reasonable expenses of bringing that motion in most situations, so the longer they stall without cause, the worse their position gets. What matters at every step is building a record that shows the court you were the party trying to make this work.
Is This Actually Stalling?
Not every postponement is gamesmanship. Attorneys and witnesses have real scheduling conflicts, medical issues come up, and a pending motion can genuinely affect a deposition’s scope. Judges expect reasonable flexibility, and they notice when a party refuses to accommodate legitimate concerns.
What marks obstruction is the pattern. Watch for repeated last-minute cancellations, vague excuses with no documentation, refusal to propose alternative dates, or delays that line up suspiciously with approaching deadlines. One reschedule is normal litigation. Three or four, with no firm replacement date, is a different problem. Recognizing which one you have shapes how aggressively you need to respond, and how soon.
Document Everything in Writing
The single most important thing you can do before any court filing is paper the file. Judges deciding discovery motions want to see who was reasonable and who wasn’t, and that determination comes down to what you can show them. Every proposed date, every refusal, every excuse should be in writing.
Keep:
- Emails, letters, and texts proposing deposition dates, and opposing counsel’s responses or silences.
- Copies of every deposition notice you served, with proof of service.
- Any stipulations or prior court orders about scheduling.
- Phone call logs with date, time, duration, and a summary of what was said.
When a deponent fails to show, go on the record with the court reporter. Have the reporter mark your notice (or subpoena for a non-party), proof of service, and any relevant correspondence as exhibits. That creates a formal record you can attach to a motion later.
Meet and Confer Before You File
Before the court will help, you have to show you tried to resolve the dispute yourself. Rule 37(a)(1) requires any motion to compel discovery to include a certification that you “in good faith conferred or attempted to confer” with the opposing side to resolve the issue without court involvement.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Skip this and the court will likely deny your motion no matter how badly the other side has behaved.
The federal rule doesn’t specify format: phone, email, letter, or in person. Many local rules fill that gap, so check your district’s requirements before assuming an email exchange is enough. Whatever the format, propose specific alternative dates and spell out what you need. If opposing counsel ignores you or keeps deflecting, that non-cooperation becomes powerful evidence when you move to compel.
Notice the Deposition Yourself
You do not need opposing counsel’s permission to schedule a deposition. Under Rule 30(a)(1), a party may depose any person, including the opposing party, without leave of court in most circumstances. You serve written notice stating the time, place, and the deponent’s name on every other party.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
This surprises attorneys who have been treating scheduling as a negotiation requiring mutual agreement. It isn’t. You pick a reasonable date, serve the notice, and the burden shifts. If opposing counsel objects, they can seek a protective order under Rule 26(c), but they have to go to court to do it, which means they need an actual reason rather than a preference to delay. The notice must give “reasonable” time, and what counts as reasonable depends on case complexity and local practice; ten to fourteen days is common for straightforward depositions.
If the other side goes to court for a protective order under Rule 26(c), don’t panic. The court can issue one for “good cause” to shield a party from annoyance, oppression, or undue burden, and it can reshape the time, location, or scope of the deposition rather than forbidding it outright.3Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery The moving party also has to certify they tried to meet and confer first. Treat the filing as a sign that the delay issue is now in front of a judge, which is where you wanted it. Respond with your history of reasonable accommodation, offer solutions to any stated concern, and explain why the deposition is essential to your case.
File a Motion to Compel
When informal efforts and your unilateral notice fail, whether the deponent doesn’t show or opposing counsel moves to quash without legitimate grounds, the next step is a motion to compel under Rule 37(a). That motion asks the court to order the opposing party to sit for the deposition.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
A strong motion includes three things: your meet-and-confer certification, a chronology of the delays with supporting documentation, and an explanation of why the deposition matters. Tie it to specific claims or defenses. “We need to depose the defendant’s project manager because she is the only person who can testify about the timeline of the alleged breach” lands harder than a general invocation of discovery rights.
Here is where the motion has teeth. If the court grants it, Rule 37(a)(5)(A) says the court “must” order the party whose conduct forced the motion to pay your reasonable expenses, including attorney’s fees, for bringing it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions The word “must” matters. The court can only avoid the fee award if you failed to meet and confer first, the other side’s position was substantially justified, or other circumstances make the award unjust. When opposing counsel has been dodging a deposition for months with thin excuses, those exceptions rarely apply.
Expenses recoverable under Rule 37 aren’t limited to the hours your lawyer spent drafting the motion. Cancelled court reporter fees, travel for a deposition that never happened, and the cost of re-noticing can all come back once the court finds the delay was unjustified. Track every dollar.
What Happens If They Ignore the Court Order
Once a court orders a deposition and the other side still refuses, the consequences escalate sharply. Rule 37(b) gives the court a menu of sanctions for disobeying discovery orders.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
- Monetary sanctions. The court must require the disobedient party, their attorney, or both, to pay the reasonable expenses and attorney’s fees caused by the noncompliance.
- Evidentiary sanctions. The court can bar the delaying party from introducing certain evidence or from supporting or opposing specific claims or defenses.
- Deemed-established facts. The court can order that certain facts be treated as proven for purposes of the case.
- Striking pleadings. The court can strike some or all of the noncompliant party’s claims or defenses.
- Default judgment or dismissal. In the most extreme cases, the court can enter judgment against the disobedient party or dismiss the action entirely.
Default and dismissal are rare, reserved for repeated and willful defiance, but they exist. Even the lesser sanctions can be devastating. An evidentiary bar that keeps the other side from introducing their key documents often has the same practical effect as losing the case.
If the Delay Shifts Into the Deposition Itself
Sometimes the tactic shifts from avoiding the deposition to sabotaging it once it starts: lengthy speaking objections, suggestive objections that coach the witness, instructions not to answer questions that clearly aren’t privileged. Rule 30(c)(2) requires objections to be “stated concisely in a nonargumentative and nonsuggestive manner.” After the objection is noted, the examination continues and the testimony is taken subject to it. Counsel can instruct a deponent not to answer in only three narrow situations: to preserve a privilege, to enforce a court-ordered limitation, or to set up a motion to terminate the deposition.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
If obstruction eats into your time, you have recourse. Depositions are normally limited to one day of seven hours, but the court must grant additional time when the examination has been impeded or delayed. Under Rule 30(d)(2), the court can sanction anyone who impedes, delays, or frustrates the fair examination of the deponent, including an order to pay your reasonable expenses and attorney’s fees. A finding of bad faith isn’t required.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
Watch the Scheduling-Order Clock
Deposition delays don’t happen in a vacuum. A missed deposition can cascade into missed expert disclosures, delayed pretrial conferences, and a postponed trial. Discovery timelines in federal court are governed by the scheduling order entered under Rule 16(b), and those deadlines are not casually flexible. If the discovery cutoff passes while you’re still trying to get opposing counsel to the table, you may lose the chance to take the deposition at all.
Modifying a scheduling order requires “good cause” and the judge’s consent.4Legal Information Institute. Federal Rules of Civil Procedure Rule 16 – Pretrial Conferences; Scheduling; Management Courts evaluate good cause primarily by looking at whether the party seeking the extension was diligent. If you waited until the last week of discovery to notice the deposition, the delay is on you no matter what opposing counsel did. But if your paper trail shows months of attempts to schedule, meet-and-confer letters, and timely motion practice, courts are far more willing to extend. Start early and escalate promptly. Every week you spend hoping opposing counsel will come around is a week closer to a deadline the court may not move.
When the Witness Isn’t a Party
If the deponent is a non-party witness rather than the opposing party, the procedural tools change. You can’t just serve a deposition notice. You need a subpoena under Rule 45, which generally requires the witness to appear within 100 miles of where they reside, work, or regularly conduct business in person. A non-party who fails to obey a properly served subpoena faces contempt of court.5United States Courts. Federal Rules of Civil Procedure Rule 45 – Subpoena
The more common scenario is that opposing counsel represents the non-party witness or coordinates their unavailability behind the scenes. When you suspect this, document the connection and raise it in your motion to compel. Courts look dimly on parties using non-party witnesses as proxies for their own delay tactics.