Case Nonsuited When Counsel Fails To Appear To Be Deposed

The Connecticut Appellate Court affirmed the nonsuit in a legal malpractice case

This is a legal malpractice and breach of contract action. In a previous action, the defendant, Adele R. Jacobs, rendered legal services to the plaintiff, Warren Null, which allegedly failed to meet the applicable standard of care. The plaintiff then retained a new attorney both to replace the defendant in the underlying action and to pursue the claims in the present case. During a protracted discovery period in the present case where many discovery related motions were filed, the trial court ordered the plaintiff’s counsel to be deposed because his testimony was necessary to explore the plaintiff’s malpractice claim. When counsel failed to appear for a deposition, the court found that the plaintiff had violated this order and, pursuant to a motion, rendered a judgment of nonsuit as a discovery sanction. On appeal, the plaintiff claims that the court improperly (1) rendered a judgment of nonsuit as a discovery sanction because, contrary to the court’s findings, his counsel exercised due diligence to comply with the court’s order and the sanction was not proportional to the violation; and (2) denied his postjudgment motion to reargue. We affirm the judgment of the court.

 Holding

We conclude that the court did not abuse its discretion in concluding that the sanction of nonsuit was proportional to the plaintiff’s violation. The record establishes that the plaintiff was on notice as early as March 20, 2014, that the defendant might seek to take [new counsel] Kolesnik’s deposition. Notwithstanding the court’s explicit finding that Kolesnik’s testimony was central to the plaintiff’s claims against the defendant, and the court’s accompanying order that he be deposed by July 21, 2014, Kolesnik never appeared.

(Mike Frisch)