03 Sep Depose Someone Who Is Not Named In Your Lawsuit with a Deposition Subpoena

In the last three weeks we’ve addressed the anatomy of a deposition and some of its more challenging aspects, such as how to handle difficult counsel, uncooperative witnesses and the no show witness. But what if you need to depose an individual or a corporation that is not a part of your lawsuit?  Your attorney will need to serve that person with a deposition subpoena.

What is a Deposition Subpoena?

A deposition subpoena is a written document which, when properly served on an individual or a corporation, requires that the witness (or a representative of that witness in the case of a company) attend a deposition and, in certain cases, produce specified documents at that time.

There are two types of subpoenas which may be issued for deposition (1) the personal subpoena, which compels the witness to attend and give testimony at a time and place specified; and (2) the subpoena to produce, which requires the witness to produce the documents listed in the subpoena, in addition to appearing for deposition and giving testimony.

What Should Be In the Subpoena?

The subpoena must (1) state the name of the court; (2) state the title of the action; and (3) command the individual or company representative to attend and give testimony at a time and place specified therein.

If you and your company are looking for documents, the subpoena may also command the individual or company representative to produce books, papers, documents, or other tangible things designated in the subpoena.

It is critical that your attorney state a specific time as well as a date in the subpoena because if a specific time is not listed, the witness may appear at any time during the day.

How is the Subpoena Issued and Served on Your Witness?

A subpoena to attend a deposition may be issued by either the clerk of the court in which the case is docketed, or by your attorney.  Subpoenas may not be issued for any purpose other than to require attendance at a deposition (or hearing or trial).  For example, the court must quash a subpoena duces tecum if it commands inspection of real property, because this is not a proper use for a subpoena under Colorado’s version of Rule 45.

The subpoena may be served any place within the state, and must be personally served on the witness.  Substituted service of process is not allowed for subpoenas, but the witness can sign a written admission or waiver of personal service.  Service of the subpoena may be made by any person over the age of 18 who is not a party to the action or proceeding.

The proof or return of service is to be made by the affidavit of the person making the service with a statement as to the date, place and manner of service and the name of the person on whom service has been made.

                Service on Residents of the State

If your witness is a resident of the state, absent court order he or she will only be required to attend the deposition in the county where (1) he or she resides, (2) is employed or (3) transacts business in person.

                Service on Nonresidents of the State

If your witness is a nonresident of the state, absent court order he or she will only be required to attend the deposition within 40 miles from the place of service or in the county where he or she (1) resides, (2) is employed or (3) transacts business in person.

Make Sure You Notify Other Parties in Your Lawsuit

Your attorney must also give notice of the subpoena to all other parties in the case promptly after service of the subpoena.  This allows other parties and their attorneys to properly calendar their time to attend, and to prepare for the deposition in the event they have questions.

Make Sure You Pay Your Witness

In addition to a copy of the subpoena, your attorney must pay the witness for one day’s attendance and the mileage as allowed by law.  Witness fees for attendance and mileage are statutory and cannot be amended by the court.

Statutory witness fees vary depending on the county where the witness is to testify.  The statutory mileage fee is to be paid for each mile actually and necessarily traveled from the witness’s place of residence to the place named in the subpoena and in returning to their residence.  These attendance and mileage fees only apply to witnesses served with subpoenas within the state and do not apply to witnesses who voluntarily come to Colorado from another state for a deposition.

Make Sure To Serve Your Witness with the Subpoena At Least Two Days Before the Deposition

A subpoena must be served at least 48 hours before the time for appearance which is set forth in the subpoena.  When calculating the 48-hour period, Saturdays, Sundays and legal holidays are excluded if you are trying to set the deposition in less than 7 days.  For example, a subpoena for a 9 A.M. deposition on Monday should be served no later than 9 A.M. on the previous Thursday.  The court may enter an order modifying the 48-hour rule for “good cause shown.”

Can Your Witness Refuse to Attend or Produce Documents?

The short answer is yes, via a successful motion to quash, motion for protective order and/or objection to the subpoena.

                Motion to Quash

The person or individual your attorney subpoenaed may be able to get out of the deposition if she filed a motion with the court to  quash the subpoena if he or she is asked to testify on a matter which is protected by a statutory privilege.

Some of the reasons why a subpoena might be quashed are (1) that it does not contain the necessary information; (2) that the witness or document which is sought is subject to a statutory privilege; (3) that it seeks the production of documents which would be unreasonable or oppressive; (4) that it was not served on the proper person or not served at least 48 hours before the appearance time; or (5) that the place of the deposition is improper.

However a request for the witness’s bank records or state tax returns may not always be grounds to seek this motion.   Nor will a motion to quash be successful if it’s based on the attorney-client privilege or the attorney work product rule because these privileges can only bar specific questions, not a whole subpoena.  Also a court may deny a motion to quash based on unreasonableness if you pay the reasonable cost of producing the books, papers, documents or tangible things.

                Motion for Protective Order

In addition to a motion to quash, any party, the person your attorney subpoenaed, or any other person claiming an interest in the documents affected, may move for a protective order under Rule 26, in addition to any other remedy available under Rule 45.

                 Objection to the Subpoena

If your attorney serves a subpoena to produce, the deponent has 10 days (or until the deposition, if the subpoena is served less than 10 days before the deposition) to serve on your attorney a written objection to inspection or copying of any or all of the designated materials.  If an objection is made, you cannot inspect and copy the materials unless your attorney gets an order from the court allowing the inspection to go forward.

If you need to subpoena a deposition witness for your lawsuit, contact Edwards Law today for a free consultation to strategize the process.