you depose an adverse expert, you should always serve a subpoena duces
- By Leonard Bucklin
First reason to always serve a subpoena duces tecum: even if you have served
the adverse party with a
Request for Production of the Adverse Expert's Files on the
adverse party, it is surprising how many times
"something extra" turns up in the expert's files if you
subpoena the expert to his/her deposition. Sometimes, the other side
was in no
hurry to ask their expert to send them more items to send on to you.
Sometimes, it's because the
dignity of a subpoena versus a letter request from an employing attorney
jars more loose for you. So always serve the expert with a solid
subpoena duces tecum.
LawyerTrialForms' has a form for you to create
21st Century, Advanced Strength, Subpoena Duces Tecum".
Second reason: 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 is able
to produce the witness --- if the court so orders. The logic
is that service of a notice of taking the deposition of the adverse
expert should compel your adversary to produce their own expert at
the noticed time and place. That’s a logical legal theory, but (1)
not all courts agree, and (2) if adverse counsel wants to argue
about it, you may have to get a court order to compel the adverse
party to use its control to produce the expert.
Here is a sample case you might want to use as one entry to
your research on the subject.
“....we are compelled to agree with petitioner to the extent
that an Alabama trial court does not have jurisdiction over a
non-party out-of-state witness....We, therefore, cannot hold
that Judge Mullins had jurisdiction to force Dr. Morton [an
expert residing in Georgia] to submit to a deposition in
Jefferson County, Alabama. However, our review of the record
reveals that Judge Mullins ... [ordered the plaintiff to] make
his expert witness available for deposition in Jefferson County.
This is what the judge ordered. He has the power to do so under
his general power to control his court and his trial docket. The
order is to the party whose presence he has. Let us be mindful
of the fact that this is not a fact witness, as such, but an
opinion witness, presumably paid with the plaintiff's funds. We
are not to be interpreted as holding that all out-of-state
expert opinion witnesses can be required to come to Alabama. But
the judge, in the exercise of his discretion, may order a party
to produce the witness .... And he has under Rule 37(b)(2), as
well as under Rule 26(b)(4)(A)(I), Ala.R.Civ.P., a plethora of
options available to be used as sanctions at his discretion if
the petitioner does not comply with his order. His choice of
sanctions will not be set aside except in the case of clear
- Ex parte Leverton, 536 So. 2d 41 (Ala.1988).
absent a court order directing the adverse party to produce
their expert, even with an agreement by counsel that she will
produce her expert witness for your deposition, some judges 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. In spite of
employment or other financial control the adverse party might
have over a witness, some judges will side with an adverse
party that says an individual cannot be brought by force, all
they can do is request that he/she please go to a deposition.
So, 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
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: no matter how many
assurances you get that an expert will appear at a deposition, serve every
witness (both your own and the adverse party's expert) with a valid subpoena, and serve it according to the
jurisdiction’s rules for personal service.
complimentary article on the Federal Rule
versus state rule
differences on protection of communications between attorney and
All The Best,
Attorney at Law
P.S. The LawyerTrialForms™ form for you to create
Advanced Strength, Subpoena Duces Tecum" is available here