In legal proceedings, the discovery phase stands as a pivotal moment where both sides gather the facts that will shape their case. Among the key instruments employed during this stage is the deposition, a formal process requiring individuals to provide sworn testimony about matters relevant to a criminal or civil case. If you have a connection to the case, you could receive a subpoena, a legal order requiring you to appear and answer questions under oath outside of court. This demand to testify can understandably raise questions and perhaps even apprehension.
The nature of a deposition is essentially an out-of-court testimony taken under oath, much like what occurs during a trial. Attorneys from opposing sides will pose questions to you, the deponent, with a court reporter present to create a verbatim transcript of the entire exchange. This recorded testimony serves as evidence, potentially influencing the trajectory of the case. Given that a subpoena is a formal legal requirement for your appearance and testimony, it is natural for people who are served to wonder: "Am I legally allowed to refuse a subpoena’s demands?"
Navigating the Subpoena – Receiving Your Notice and Responding
A subpoena compelling your attendance at a deposition typically arrives through formal channels. One common delivery method is through a process server, where an authorized individual physically hands the subpoena to you, providing a direct confirmation of receipt. Alternatively, depending on the jurisdiction's rules, a subpoena might be served via certified mail with return receipt requested. This requires your signature upon delivery, providing documented proof that you received the notice.
When receiving your deposition subpoena, you first want to locate the date, time, and location specified for your deposition. Double-checking these details ensures you know exactly where you are expected to be and when, allowing you to plan accordingly and avoid any last-minute scrambles. Carefully examine the case name and court information to confirm this subpoena is indeed intended for you.
One of the most prudent steps you can take after receiving a subpoena is to consult with legal counsel without delay. An attorney can thoroughly explain the nuances of the subpoena, clarify your rights as a witness, and outline your obligations under the relevant laws and rules of civil procedure. This consultation ensures you fully understand the scope of the deposition, what information can be requested, and how to navigate the process effectively. Engaging legal counsel empowers you to protect your interests and avoid potential pitfalls during your testimony, providing invaluable peace of mind during a potentially complex legal proceeding.
Legal Requirements for Attending a Deposition
Many of the rules around testifying at depositions are determined by the FCRP (Federal Rules of Civil Procedure). The FCRP addresses the requirement for an individual to testify at a deposition primarily through Rule 45 and Rule 30.
In summary, under Rule 45, an individual is required to testify at a deposition served with a valid subpoena, within the geographical limitations specified in that rule, and after being properly served with the subpoena and any required fees. Rule 30 works in conjunction with Rule 45 by outlining the general procedures for taking depositions and acknowledging the use of subpoenas to compel non-party attendance.
Therefore, it is legally required to appear for a deposition when a subpoena is received. However, there are several situations in which you can refuse to attend a deposition entirely or reschedule it to a more suitable time and place.
Exceptions and Refusals
Exceptions that could lead to changing or cancelling the deposition's details as outlined in the subpoena include:
Undue Burden: in certain circumstances, appearing for a deposition can create an
undue burden or expense. This might arise due to significant travel distances, lost wages associated with attending, or a personal hardship. In such situations, you have the right to seek an exemption from attending the deposition at the originally scheduled time and location. However, approval typically requires a court order, demonstrating to the judge that attending the deposition as directed would indeed constitute a significant burden.
Health and Safety Concerns: In situations where attending a deposition could pose genuine health or safety concerns, you may be eligible for an exemption from providing your testimony in person. This provision primarily applies to risks that could arise from a contagious illness that would endanger others, a severe medical condition that would be exacerbated by travel or the stress of testifying, or credible threats to your safety if you were to appear at a specific location. Seeking an exemption on these grounds requires demonstrating to the court that attending the deposition would create a substantial and unacceptable danger to your well-being.
Situations where you may legally refuse to answer certain questions during a deposition include:
Privileged Information: During a deposition, while you are generally obligated to answer questions truthfully and to the best of your recollection, there is a crucial exception: privileged information protected under attorney-client confidentiality. If a question delves into communications you have had with your attorney for the purpose of seeking or receiving legal advice, you have the right to refuse to answer that specific question. Attorney-client confidentiality is fundamental to our legal system, as it allows for open and honest communication between clients and their counsel without fear that those communications will be disclosed in legal proceedings.
Self-Incrimination: The Fifth Amendment allows you to refuse to answer questions that would incriminate yourself. In the context of a deposition, this means if a question posed could lead to the discovery of evidence that could be used against you in a criminal prosecution, you have the constitutional right to assert your Fifth Amendment privilege and decline to answer that specific question. Therefore, if you believe a question in a deposition might elicit a self-incriminating response, it is imperative to consult with your own legal counsel before the deposition or when the question arises.
Irrelevance or Harassment: If you are asked a question that is clearly irrelevant to the subject matter of the lawsuit or appears to be solely intended to harass, embarrass, or oppress you, there are grounds for objecting to the question. If the objection is upheld, the question can remain unanswered. Attorneys have a professional responsibility to conduct depositions within appropriate bounds, and the rules of civil procedure aim to prevent abusive discovery tactics. Your attorney will likely object to such questions on the record, stating the legal basis for the objection (e.g., lack of relevance under Rule 26(b)(1) or undue burden/harassment under Rule 26(c)).
What Happens If You Refuse to Give a Deposition?
If you have been deposed by a subpoena, and no valid grounds for exceptions or refusals exist, then you are required to appear and testify. However, if you do decide to refuse the subpoena, there are several negative legal outcomes to consider:
Contempt of Court: Failure to appear for a deposition often incurs a contempt of court ruling, the consequences of which can be severe. Fines are one possible outcome, with amounts varying by state. In Utah, for example, the fine may not exceed $1,000. For more flagrant violations against court orders, the punishment could include jail time. Again, this will differ by state. In Colorado, you can serve up to six months in jail for contempt of court charges.
Adverse Inferences: When you refuse to offer your testimony in a deposition, judges may allow the jury to draw adverse inferences. These apply when it is believed a party is withholding evidence or testimony because it will harm their case. When an adverse inference is allowed, the judge or jury assumes the evidence would have been a detriment to the party’s case and adopts the other party’s reasonable interpretation of what the evidence contained.
Dismissal or Default Judgment: Depositions are key to the discovery phase of a trial. Both parties in a case provide testimony to present their side. If you refuse to provide your testimony, the judge may dismiss the case. In some cases, the judge can go even further and immediately rule in favor of the opposing party that did provide testimony. This is called a default judgment.
Sanctions: The court has the power to sanction the offending party. A sanction is a punishment imposed by the court when an offending party is violating the rules of the court or actively working to undermine those rules. The court has broad authority to apply sanctions as it sees fit. These punishments can take many forms. Some examples of sanctions are fines paid to the court, orders to pay the opposing party’s legal fees, and even refusing to accept the submission of new evidence that may pertain to what would have been discussed in the deposition.
Given the potentially severe consequences that can arise from refusing to comply with a legally authorized deposition subpoena – which, as discussed, can range from monetary sanctions to contempt of court charges – it is generally prudent to adhere to the court's order and appear for your scheduled deposition. However, if you believe valid grounds for an exception or refusal exist in your situation, such as those related to privilege, self-incrimination, undue burden, or significant health and safety concerns, you have the right to seek legal recourse.
The quickest way to understand your rights is to consult an attorney specializing in the relevant area of law and litigation. Your attorney can assess the specifics of your case, advise you on the legitimacy of your potential grounds for opting out of testifying, and, if appropriate, file the necessary motions with the court to request an exemption or modification of the subpoena.
Partner with NAEGELI Deposition & Trial for Comprehensive Deposition Services
While understanding your rights and obligations during a deposition is crucial, should you find yourself needing to testify, NAEGELI Deposition & Trial offers the comprehensive support you require. Our experienced team provides end-to-end deposition services, including accurate court reporting, reliable transcription, professional videography, and expert remote deposition support. With over 45 years of dedicated service to the legal community and a steadfast commitment to accuracy and professionalism, NAEGELI Deposition & Trial is a steadfast resource you can depend on.
To experience expert guidance throughout your legal journey, contact us today by calling (800) 528-3335, emailing schedule@naegeliusa.com, or connecting with our client support team through the chat icon at the bottom of the page!