Before a trial occurs, the attorneys of both parties conduct a discovery phase to gather facts and build their case. One of the key instruments of this phase is the deposition. They require deponents to give a sworn statement about case matters. You, the deponent, will receive a subpoena and be compelled to provide your testimony. However, are there times when you are legally able to opt out of testifying?

Legal Requirements for Giving a Deposition

First, we will explore the obligations of you and your counsel by discussing the legal rules regarding depositions. Many of these rules are determined by the Federal Rules of Civil Procedure. The FRCP states that parties may use subpoenas to compel an individual to give a deposition and answer questions according to the case.

A subpoena is a formal written order that requires a person to appear for a legal proceeding. Considering this, reason dictates that it is legally required to appear for a deposition when a subpoena is received. However, this is only sometimes the case. There are several situations in which you may be able to have a deposition rescheduled or not attend. 

Exceptions and Refusals

Several exceptions may be applicable if you want to withdraw from your deposition. It is essential to note that the majority of exceptions are related to the answering of specific questions asked by an attorney. Circumstances that permit you to refuse to attend a deposition altogether are rare.

  • Privileged Information: If you are asked a question that involves privileged information protected under attorney-client confidentiality, you may refuse to answer that specific question.

  • Self-Incrimination: The Fifth Amendment allows you to refuse to answer questions that would incriminate yourself.

  • Irrelevance or Harassment: If you are asked a question during a deposition that is deemed irrelevant to the case or is intended to harass, the question may remain unanswered. 

  • Undue Burden: In cases where attending the deposition presents an undue burden or expense, you can seek exemption. However, this requires a court order proving the deposition will constitute a significant burden. 

  • Health and Safety Concerns: If the deposition can cause health or safety concerns, you can be exempt from giving your statement. This applies primarily to cases where testifying puts yourself at significant personal risk.

What Happens If You Refuse to Give a Deposition?

Once you have been deposed by a subpoena, you are required to appear and testify. Outside of the few circumstances above, refusal is not an option. However, if you do decide to refuse the subpoena, there are several negative legal outcomes to consider:

  • Contempt of Court: When refusing to comply with a deposition, you will likely be held in contempt of court. When held in contempt of court, there are several ramifications to be imposed. First, if you deny a court order, you can be fined. The cost of the fine will vary among states. In Utah, for example, the fine may not exceed $1,000. For more flagrant violations against court orders, the punishment could be jail time. Again, this will vary 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 give a 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.

If you are uncomfortable with providing testimony in a deposition or trial, you have a right to seek legally authorized ways to reject subpoenas compelling you to be present. However, if no such recourse exists, it is in your best interest to obey court orders, because the consequences for failing to comply can be significantly damaging. You should consult with a licensed, professional attorney for advice on which options are available to you.

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