In lawsuits, it is common for attorneys to take the depositions of non-parties. These non-parties are often fact witnesses to cases and the attorney is trying to investigate the facts. In other situations, an attorney may want to take the deposition of a professional that may be a fact witness, but he may also want to know if that professional is an additional responsible party. For example, in certain business deals or real estate transactions or development projects that go bad, architects and engineers may get pulled into dispositions. It is normal for any person to have their guard up and wonder if they are going to get sued as well. Third parties could be brought in as witnesses to litigation matters involving real estate, business disputes, personal conflicts, construction matters, health care law and professional liability matters.
Proper litigation strategy will often depend on the individual facts of each case. In these situations, the corporate representative deposition as an opportunity to learn more about the real facts of business litigation. Attorneys try to depose more information in hope that they will reveal facts that will win their case. When evaluating the strength of their client’s case, trial lawyers often accord great weight to witnesses’ and attorneys’ performances during depositions. Thus, if an attorney’s client performs well while the opponent performs poorly, the attorney may attach a higher credibility to the better performing party and lawyer. Depositions are transcribed by a court reporter and often taken by video to show the jury later.
In re Prince, 2006 Tex. App. LEXIS 10558 (Tex. App. Houston [14th Dist.] Dec. 12, 2006), involved a California proceeding. The non-party lived in Texas. The California litigant sought and obtained from the California court a commission requesting a Harris County court to issue a subpoena for the production of documents and for that person’s appearance for an oral deposition. The witness appeared for his deposition but did not answer all of the questions. The Harris County court then granted a motion to compel and ordered Prince to appear in California for the continuation of the deposition. The court of appeals construed the trial court’s order that the second deposition take place in California as an improper sanction against a non-party, and beyond the trial court’s authority, which was limited to its contempt power. The Texas Rules of Civil Procedure address sanctions of contempt against nonparties.
As relevant here, the Texas Rules of Civil Procedure provides that the request for a deposition, even though originating from a case pending [out of state], is governed by the Texas rules. According to the Texas Rules of Civil Procedure, if a court of record of any other state . . . issues a . . . commission that requires a witness’s oral or written deposition testimony in this State, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in this State.
A subpoena is necessary to compel a nonparty’s attendance at a deposition, because he is not a party to the proceeding. Texas procedure provides that non-party witnesses may be compelled to attend depositions only by subpoena. According to the Rules, parties or persons controlled by parties can be compelled to attend a deposition via notice alone.
It is important to have an attorney assist in defending the deposition if you are not a party or a party. Defending a client’s deposition can be as critical to protecting that client to help prevent them from being brought into the case. Never underestimate the risks involved in having your deposition taken. Being brought into a breach of contract dispute or litigation may be inevitable. Try not to be surprised by the questions. An attorney may be able to help you understand what to expect. The testimony that you provide may be used against you in a court of law.
Your appearance at your deposition is important. Whether right or wrong, a witness’s physical appearance goes a long way. Although generally a sensitive subject, your attorney can explain the value and benefits of appearing highly professional in any videotaped deposition.
If you have been subpoenaed for a deposition and you need representation, The Weaver Law Firm can help. Richard Weaver, the firm’s principle attorney has attended hundreds of depositions and will work to prepare you. You can reach a trial attorney at the firm by calling 713-572-4900.