Why ask me? It’s your fight.

It's a situation that happens often in commercial litigation, especially in the building industry. For example, your assistant may one day give you legal papers and say those dreaded words: "We just got served."

You gasp, "I just got sued?" Although the names on the lawsuit sound familiar, you're relieved to find that you're not listed as a party. But why then did you receive the papers?

Subpoenas contain language designed to compel a respondent to appear. So don't be surprised to find in the document a notice "commanding" you to appear at a specified location on a certain date. It also may direct you to bring certain documents, including e-mails from your personal computer.

So what should you do when served with a third-party subpoena?

While someone in this situation may not (yet) be a party to the lawsuit, being forced to testify in someone else's dispute is fraught with risks. Consider the following:

1.      Must I testify?

2.      Must, or should I, produce the requested documents?

3.      Why am I being asked to testify (i.e., what is my role in their dispute)?

4.      Will I be drug into this, or some other lawsuit?

5.      How should I prepare, and should I contact the other lawyer before I testify?

6.      Should I hire an attorney?

Must I attend?  Subpoenas must be personally delivered or left at your "usual place of abode." Surprisingly, job sites don't count, unless you're personally served.  Subpoenas must also expressly advise you of your rights. While subpoenas can be served anywhere within Washington, witnesses cannot be compelled to travel outside the county where they reside or are employed. Out-of-state witnesses cannot be forced to testify at trial in Washington, but they can be compelled, if ordered by a court in their state, to testify at a deposition provided the deposition is held in their state.

Can I change the date and location? Attorneys must "avoid imposing undue burdens or expenses" on the witness when scheduling depositions or requesting documents and if a witnesses provides a written objection, the attorney must get permission from the court before they can force them to produce documents.

Should I consult a lawyer? Lawsuits, especially involving construction cases, are often complex and involve multiple parties (contractors, sub-contractors, insurance companies, engineers and architects).  If compelled to testify at a deposition, you are probably at risk of being dragged into the fight.  Be mindful that the other parties won't protect your interests; they only want your information or, worse yet, pass the blame onto you. Proceeding without an attorney is therefore fraught with risks.

Do I need to prepare?  Your testimony at a deposition is under oath and preserved forever in a transcript and might be used against you. Similar risks exist with producing documents without legal advice. You may inadvertently produce confidential documents (i.e. specific plans owned by someone else and protected by a copyright) or provide information protected by attorney-client privilege.

So the best advice when served with a subpoena is to immediately consult your attorney to ensure that someone is protecting your interests, even if you're not a party. The attorney will analyze the jurisdictional and service issues to determine whether you must testify. They will also review the court files, talk to the other attorneys, investigate the facts and determine your role in the dispute and assess risks before you testify. They will also prepare you by anticipating the questions and providing guidance on how best to testify and avoid pitfalls. Your lawyer should also attend the deposition with you. 

Brad Andersen is an attorney in the Vancouver office of Pacific Northwest regional law firm Schwabe, Williamson & Wyatt, focusing his practice in the areas of commercial litigation, trial work, real estate disputes, construction, land use permitting and development. He can be reached at 360-905-1431 or bandersen@schwabe.com.

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