Help! Somebody Wants to Take My Deposition!
When To Hire a Deposition Attorney
A deposition is a proceeding that normally occurs before trial and outside of the courtroom setting. During a deposition, the sworn testimony of a witness is taken and recorded before a court reporter.
Sometimes, but not always, the witness is served with a subpoena requiring them to appear for the deposition and describing the date, time, location, and purpose of the deposition. A subpoena may further order the witness, also known as the “deponent,” to produce documents or other materials for review by the parties to the case. In other cases, a witness may simply receive a request from a party to appear for deposition in lieu of a subpoena.
Depositions may be taken by parties to either a civil case or a criminal case. Regardless of whether the deposition relates to a criminal case or a civil case, the deponent has constitutional and statutory rights to protect his or her interests. These interests include the deponent’s right to be free from unnecessary or improper depositions, and to relieve the deponent from undue burdens placed upon him or her.
More importantly, all people enjoy a privilege against compulsory self-incrimination under the Fifth Amendment to the United States Constitution. This privilege may be invoked in response to any question or demand posed to a deponent so long as the deponent has a reasonable belief that the answer could incriminate him or her.
So what should you do if a party to either a civil or a criminal case either requests that you submit to a deposition or serves you with a subpoena to appear for a deposition? Contact an attorney at Berry Law today for a free consultation to ensure that your rights are protected and that, above all else, you do not incriminate yourself in a manner that subjects to potential criminal prosecution.
What should I do if I have been served with a subpoena for a deposition?
First, do not ignore the subpoena. Failure to respond to a subpoena may result in a finding of contempt by either the court or agency that issued the subpoena. Monetary penalties may be imposed or, in instances involving ongoing contemptuous behavior, imprisonment pending satisfaction of the subpoena.
Read the subpoena and learn everything you can about who wants to subpoena you and why. Next, contact a Berry Law attorney and be prepared to explain the situation and provide a copy of the subpoena or other document demanding that you appear for deposition. Your Berry Law attorney will assist you in determining what your obligations are and what you’ll need to do in response to the subpoena or request to appear for deposition.
What are potential grounds for challenging a subpoena to appear for a deposition?
Depending on the circumstances, your attorney may recommend challenging a subpoena to appear for a deposition by moving to quash the subpoena. If a motion to quash the subpoena is granted, you will no longer need to appear for the deposition or produce any documents required under the subpoena. It is important to contact an attorney immediately after receiving a subpoena for a deposition because time limits of two weeks or less may apply to a motion to quash the subpoena.
Potential grounds for quashing a subpoena include, but are not limited to:
- Relevancy (any information in the deponent’s possession is irrelevant to the issues in the case)
- Undue burden (production of the information or testimony demanded by the subpoena would result in the imposition of an undue burden on the deponent)
- Timeliness (subpoenas must be served upon the deponent in a timely manner proscribed by statute)
- Geography (subpoenas may not require compliance from a deponent outside geographic limits established by statute)
- Improper Court (subpoenas may only be issued by the court where the action is pending)
- Invasion of Attorney-Client Privilege (subpoenas may not require the disclosure of privileged or protected information)
- Other procedural deficiency (the party seeking the deposition failed to follow a procedure required for proper notice and service of the subpoena)
Will I have to testify about matters that may incriminate me?
A deponent may invoke his or her Fifth Amendment privilege in response to any question posed to him or her during a deposition that would result in an answer that tends to incriminate him or her. If you receive a subpoena or demand to testify in a deposition, and if you believe there is a chance you could be asked questions that would require you to provide incriminating answers, it is of critical importance that you contact an attorney to guide you through the process. The Fifth Amendment protection against self-incrimination is an important constitutional right that will protect a deponent from greatly increasing the likelihood that he or she will be charged with a crime when correctly invoked.
Is it acceptable to lie during a deposition if the answer to a question will incriminate me or otherwise harm me?
If a deponent lies under oath during a deposition, it is no different than lying under oath during a trial. The deponent may be subject to criminal prosecution for perjury because he or she knowingly told a lie while under oath, particularly if the lie concerns a material fact in the case.
Do not lie in a deposition. Instead, contact a Berry Law attorney as soon as you receive the subpoena or demand to appear for deposition.
Contact a Berry Law Deposition Attorney
Helping the you receive the defense you deserve!
Certain challenges come with being the subject of a subpoena or demand to appear for a deposition. Fortunately, there are many protections built into our Constitution, statutes, and case law designed to prevent and remedy a subpoena that violates mandatory procedures or is unduly burdensome on the deponent.
With competent representation, you may take advantage of these protections such that you avoid the need to appear for an unnecessary deposition or, more importantly, you avoid potential self-incrimination that could result in criminal prosecution.
If you believe that you should not be subject to a subpoena or demand to appear for a deposition, there is help.
Call (402) 466-8444 or contact an attorney online to answer any questions and start the process of hiring an attorney who will protect your rights.
