Subpoenaing Non-Party Witness for Deposition

I frequently need to depose a non-party witness during the course of a case.  Often, one or more of the parties or attorneys have a relationship or connection with the witness and are able to assist in getting the witness to attend the deposition without need for a subpoena.

What happens when that fails?  I have no Nevada specific decision, however federal courts have held absent a validly issued and served subpoena, a non-party witness cannot be forced to attend a deposition.[1]

Now a bit of a local twist.  In a July 20, 2012 discovery hearing for A-10-628015-C, DC Bulla noted although this is the rule, the court would frown upon those who refuse to cooperate in securing the testimony of a non-party witness within their control, but then represent this non-party witness at deposition.  I suspect this most frequently occurs concerning former employees.  Counsel “has an obligation to ASSIST setting depositions if counsel represents Individuals at trial” and deposition.  Translation?  Be nice.  If the opposition wants to depose a non-party witness and you can secure the attendance of this witness for them, in most cases just help them out.  Save the battle for later.

[the_ad id=”5306″]

[1] NRCP 30(a)(1); Nuskey v. Lambright, 251 F.R.D. 3, 12 (D.D.C. 2008); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30 n. 16 (1984) (“Under Rules 30 and 31, a litigant may depose a third party by oral or written examination. The litigant can compel the third party to be deposed and to produce tangible evidence at the deposition by serving the third party with a subpoena pursuant to Rule 45.”); Westmoreland v. CBS, Inc., 770 F.2d 1168, 1175 (D.C. Cir. 1985) (“To compel a [nonparty] witness to attend a deposition under Rule 30(a), a party must obtain a subpoena under Rule 45(d).”).