While a party may compel the opposing party’s expert to attend a deposition by serving a subpoena on the expert, the party may also move under FRCP 37 for an order compelling the opposing party to attend the deposition. If subpoenaed, the expert is subject to contempt sanctions if he fails to show up for the deposition. By contrast, a Rule 37 order operates only against the party, and if the expert doesn’t appear for the ordered deposition, the hiring party can escape sanctions by showing that it made good faith efforts to have the expert appear but was failed in that effort. Here, the district court entered a Rule 37 order; the expert didn’t appear, and the hiring party did not show it made good faith efforts to assure the expert’s appearance. So the district court did not abuse its discretion in assessing contempt sanctions against the hiring party’s counsel in the amount of the deposing party’s costs associated with the failed deposition.
Ninth Circuit Court of Appeals (Nguyen, J.); March 19, 2018; 2018 WL 1371564