How do I get out of a deposition?

[panchat]

What is the name of your state?What is the name of your state? California

I was a non-executive VP of Marketing for a Hayward, CA company that is now suing a Utah company over a perceived patent infringment. I have received a subpoena from the defendant's attorney requiring me to give a deposition, although I have not worked for the plaintiff company in seven months and do not have anything beyond my memory to provide.

The company I used to work for cannot represent me since I am no longer an employee. Additionally, I have signed a non-disclosure agreement with my past company that disallows me from sharing information about them.

I don't really want to spend a lot of my own money on a personal attorney for a dispute between two parties I care nothing about. I would have thought my ex-company would represent me, but instead they are saying they will sue me if I say anything of a confidential nature during the deposition. Any suggestions?

 

[meganproser]

"I have now been deposed by the defendant's attorney"

If you've already given your deposition then I don't understand your question.

 

[panchat]

Received subpoena

Sorry, I have received a subpoena to appear for a deposition. I received the subpeona on 12/28 and have been requested to show on 1/4/05 for the deposition...not much time.

 

[You Are Guilty]

If the defendant's attorneys are from Utah, they can not compel you to appear for a dep in CA (assuming you're a CA resident).

 

[HomeGuru]

Sorry, I have received a subpoena to appear for a deposition. I received the subpeona on 12/28 and have been requested to show on 1/4/05 for the deposition...not much time.

**A: is it a video depo? If not and youi are supposed to go to Utah, refuse unless they pay your mileage and travel costs.

 

[divgradcurl]

If the defendant's attorneys are from Utah, they can not compel you to appear for a dep in CA (assuming you're a CA resident).

You Are Guilty, actually that's not the case. California Code of Civil Procedure, Section 2029:

"Whenever any mandate, writ, letters rogatory, letter of request, or commission is issued out of any court of record in any other state, territory, or district of the United States, or in a foreign nation, or whenever, on notice or agreement, it is required to take the oral or written deposition of a natural person in California, the deponent may be compelled to appear and testify, and to produce documents and things, in the same manner, and by the same process as may be employed for the purpose of taking testimony in actions pending in California."

Now, if he fails to attend the depo, or lets them know he won't be attending the depo, and the Utah attorneys need to file a motion to compel, they may have to use local counsel (CA counsel) to prepare and file the motion to compel in a local court in CA -- but a subpoena from a Utah attorney is just as good in CA as it is in Utah -- as long as the depo is taking place in CA. If the depo is scheduled to take place outside of CA, then I defer to HomeGuru.

 

[meganproser]

I assume this is a Federal Court case?

You do not need an attorney for your deposition unless YOU have something to hide.

As per FRCP 45 (2)…A subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is to be taken.

In this particular situation, the defense attorney, presuming he is qualified to practice in the district court in which the case is pending, merely had to issue and sign a subpoena for the district court of the district where the deposition is going to take place. See FRCP 45 (a)(3)

Whether or not the subpoena was properly issued, you have not been given enough notice and could move to quash on those grounds. Eventually you are going to be deposed anyway but here is what I would do:

Today is a legal holiday and the court will be closed. I would try to contract the defense attorney first thing in the morning (holiday or not he may very well be working), to see if he would voluntarily make some changes.

If you prefer to have the deposition re-scheduled, tell him he hasn’t given you enough notice and resolve that issue with him. If he won’t reschedule, move on to the other problem of your confidentiality agreement.

Explain the non-disclosure issue to him and tell him you have to file a motion to quash under FRCP 45 ©(3)(B)(i) on Monday, unless he has a better idea.

Keep in mind that the attorney can use anything you say on the phone if it will help his case, he is NOT your friend (unless you want the other side to loose), and you can move to quash his subpoena until the court settles the confidentiality issues.

The attorney was required to include a copy of FRCP 45, Parts C & D with the subpoena. This information advises you of your rights as a witness. Notice that FRCP 45 (c)(3)(B)(i) says a subpoena can be quashed or modified if it requires disclosure of a trade secret, or other confidential research, development, or commercial information.

If you can’t reach the attorney today, prepare a motion to quash (it need not be any formal thing, just a statement of your problem) and get it to your district court first thing Monday.

Email or fax a copy of the motion to the defense attorney and call them to notify them of it as well. You want to give the defense attorney as much time as possible to notify the other party that the deposition is cancelled for Tuesday.

Come back and give us an update!

*I am NOT an attorney.

 

[You Are Guilty]

You Are Guilty, actually that's not the case. California Code of Civil Procedure, Section 2029:

"Whenever any mandate, writ, letters rogatory, letter of request, or commission is issued out of any court of record in any other state, territory, or district of the United States, or in a foreign nation, or whenever, on notice or agreement, it is required to take the oral or written deposition of a natural person in California, the deponent may be compelled to appear and testify, and to produce documents and things, in the same manner, and by the same process as may be employed for the purpose of taking testimony in actions pending in California."

Now, if he fails to attend the depo, or lets them know he won't be attending the depo, and the Utah attorneys need to file a motion to compel, they may have to use local counsel (CA counsel) to prepare and file the motion to compel in a local court in CA -- but a subpoena from a Utah attorney is just as good in CA as it is in Utah -- as long as the depo is taking place in CA. If the depo is scheduled to take place outside of CA, then I defer to HomeGuru.

How is an attorney-sourced EBT subpoena from a Utah attorney a "mandate, blah blah blah of any court of record"?

That is, I can serve subpoenas on anyone I want with my signature alone, or I can get them "so-ordered" (signed) by a judge. In the first case, it would appear that I cannot compel a CA dep, whereas in the second, I could. No?

(Of course, I'll ignore getting an open commission as a possibility in the OP's case).