IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...

Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 11 of 23Therefore, Two Plus Two’s failure to attend the deposition or to object to Appellant’sdeposing of Bell cannot be construed as prejudice to Appellees. The Supreme Court ofthe United States has opined that:[i]t is the settled rule of this court that the failure of a party to noteobjections to depositions . . . when they are taken . . . will be heldto be a waiver of the objections. While the law requires duediligence in both parties, it will not permit one of them to beentrapped by the acquiescence of the opposite party in aninformality which he springs during the progress of the trial, whenit is not possible to retake the deposition.Howard v. Stillwell & Bierce Mfg. Co., 139 U.S. 199, 205 (1891).3. Both parties failed to comply with the mediation orderI am mindful that Two Plus Two failed to inform this Court on how Appellant’sfailure to comply with the Mediation Referral Order prejudiced Appellees. First, theMediation Referral Order required its first mediation conference to be scheduled withinforty-five (45) days after the February 15, 2007 Scheduling Order. Second, the Order statesthat the parties could stipulate to the designation of a certified mediator within ten (10)days, and that the parties were to notify the trial court within ten (10) days if they failed toagree upon a mediator.Neither party made any arrangements to comply with the provisions of theMediation Referral Order. Two Plus Two did not initiate a discussion or proposal regardingmediation and the name of a mediator until Two Plus Two’s counsel mailed and faxed acopy of a letter to Appellant on May 5, 2007, approximately one month after the mediationconference was scheduled to convene. Here, Two Plus Two has neither asserted nor proventhat it timely and diligently complied with the Mediation Order. Moreover, Two Plus Two