Kevin J. Price
Many a businessperson is served with a deposition subpoena at some point in their career. The document is essentially a court order, issued by an attorney to a non-party witness, which compels them to go to a lawyer’s office and submit to sworn testimony. It may also (or instead) require production of business records, for example a job file. The timetable is short- sometimes just a couple of weeks before the deposition. (It needn’t be said that ignoring a court order is not an option.)
The subject of the subpoena isn’t being sued, and a telephone call to the subpoenaing attorney confirms that they are not a potential target of the litigation (“I promise!”). So what could go wrong?
Most often, the subpoena is just what it seems and there is no harm in responding. But this is not always the case. It is not unheard of for an attorney, who has his or her eye on a potential new defendant to an ongoing lawsuit, to first take that fateful deposition and thereby secure sworn testimony and documents before the defendent has the benefit of counsel. Without guidance, the deponent may disclose privileged communications, produce damaging documents, or make admissions that will later be used against him. From that point on, it’s like trying to put the toothpaste back into the tube.
So what to do? A pre-deposition call to the liability insurer will usually not result in the carrier assigning counsel- after all, the insured hasn’t been sued yet, and it’s often difficult for an insurer to justify the expense. The better course is to consult with ones own attorney who can review the complaint and speak with the subpoenaing attorney in order to determine, if possible, exactly into what the deponent is about to step. And, of course, whether or not he should bring his boots.
If the risk looks low, the best course of action may be to go through with the deposition as planned. If there is potential liability upon the deponent, it might be wise to have an attorney respond to the subpoena, review the job file before producing it, and attend the deposition to keep an eye on things. The attorney’s analysis may also be useful in convincing the liability insurer to assign defense counsel before the deposition takes place.
As with most things, luck favors the prepared. A couple hours of attorney time up front may help to avoid expense later.
