"When you depose an adverse expert, you should serve a subpoena duces tecum."

Even if you have served a Request for Production of the Adverse Expert's Files on the adverse party, when you take the expert's deposition, also serve the expert with a subpoena duces tecum for his/her files.  It is surprising how many times "something extra" turns up in the expert's files.  One of the most obvious reasons is that additional file items have accumulated, and the other side is in no hurry to ask their expert to give them more items to send on to you.  Another frequent reason is the expert brings more because of the dignity of a subpoena versus a letter request from employing attorney to send the attorney the expert's files.  So always serve the subpoena duces tecum.

The LawyerTrialForms™ #0805, Demand for Production of Adverse Expert's Files, works just fine for the duces tecum list. If you have that form, just open it on your computer, copy the body of the form, and paste it into your subpoena form as the list of items to bring, i.e., the duces tecum list. 

Remember, a witness is not obligated to attend a deposition -- or bring anything --- unless he/she has been summoned by a valid subpoena, properly served under the rules of the court involved. Absent a valid deposition subpoena, properly served, the witness may ignore you with impunity.

♫ (That's a WARNING chime.) All too often an attorney noticing a deposition in one state for a case venued in another state (e.g., deposition in Arizona of the witness, to be used in a Texas lawsuit) mails the expert a subpoena issued by the court of the state of venue.  Except for a few unusual times when the law of both states involved permits it, a subpoena out of one state is not valid in another state. Be sure your subpoena is properly issued, from the proper court. If you as an attorney serve a document that looks like a subpoena, but is not a valid subpoena, or is not properly served, you may be open to a charge of abuse of process.

When you want an unfriendly witnesses to attend her deposition, it’s obvious: you need to serve the subpoena to insure her attendance at the deposition and to bring what you want brought. If the witness has been duly summoned to a deposition but fails to attend, then the court may issue an “attachment of the body” or “bench warrant” (local terms vary) directing the sheriff or marshal to arrest the witness and deliver the witness to the deposition. Alternatively, you can use a more difficult process to have the court fine or jail the witness for contempt of court.

It is possible to claim that the adverse expert is "under the control" of the adverse party and so the adverse party must ensure their attendance.  But --- and it is a major consideration --- not every trial judge will so rule.  Some will take the position that it is your obligation as the person noticing the deposition to subpoena every witness that is not the adverse party or directly employed by the adverse party.  Some judges side with an adverse party that says the expert is an independent contractor and they have no power to compel their expert to go anyplace or do anything, all they can do is request that he go to a deposition. This argument may find a friendly ear at the courthouse if the reason the expert did not come to the deposition involves your failure to pay of the expert's demanded outrageous fee in advance.  Plus, any argument to the court takes time, and perhaps a further postponement of the trial you do want postponed.

Importantly, with both friendly and unfriendly witnesses, if opposing counsel have traveled to take the deposition and finds an empty chair, you may be liable for the other side’s costs including the attorney’s fee. The federal rule on the subject is typical of state rules.

If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees.
             Fed. R. Civ. P., 30(g)(2)

Hence the rule you should always follow: serve every deposition witness with a valid subpoena, and serve it according to the jurisdiction’s rules for personal service.

All The Best,
 
Leonard Bucklin
Attorney at Law

P.S.  If you have our Form #EX0805 to make a Demand for Production of the Files of the Adverse Expert there is no need to buy a second form from us (or from anyone else) to make short work of stating the documents to bring when issuing a subpoena duces tecum to the adverse expert.  Just take our form #EX0805 and use the body of it a second way. We are selling the Form #EX0805 Request for Production of Files of Adverse Expert until midnight of  , for only $17. If you need to subpoena the files of an expert witness, click here to go to our catalog page for Form #EX0807 Request for Production of Files of Adverse.

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