Is a Deposition Subpoena Really Worth Anything?

A witness is subpoenaed to appear for a deposition but does not appear. Hopefully the subpoena was validly served and a record of the non-appearance was made. Next, I often try to subpoena the witness again. This is not necessarily a requirement; however, as a practical matter, if the person is validly served again and fails to appear, then it helps eliminate several typical excuses.

If the witness’s testimony is really, seriously needed, then what do you do? Mankel v. Gov’t Emples. Ins. Co. is a bad faith case.[1] The plaintiff wanted to depose the claims adjuster who had handled the claim but who was apparently no longer a GEICO employee. Plaintiff began efforts to serve the adjuster and eventually accomplished service two days before the scheduled deposition. A non-appearance was entered. Plaintiff moved for an order to show cause due to the failure to appear and for and order that the adjuster reimburse plaintiff $1,180.70 of costs related to the deposition. A hearing was held, but the adjuster did not appear for the hearing or object to the order to show cause why he should not be held in contempt.

The court applied similar standards to those previously discussed about contempt. It then held the adjuster in civil contempt. He was ordered to pay $1,180.70 for costs and if he “fails and refuses to appear before the District Court, it is recommended that a bench warrant be issued for his arrest.”

While this is certainly a method permitted within the rules to obtained compliance from a reluctant witness, I rarely see it used. Generally I don’t want to unnecessarily anger the deponent before the deposition starts because obtaining compliance through the process used here is not cheap, quick, or easy. After the deposition starts, well, people get angry sometimes but that is the nature of the business.

[1] 3:16-cv-00657, 2017 U.S. Dist. LEXIS 119403 (D. Nev. July 31, 2017).