Episode 43 - What to Do When Subpoenaed Non-Party Witnesses Fail to Appear for Deposition

You properly subpoenaed the non-party witnesses. You issued the subpoena from the correct court, and you even included a check for mileage. You did everything right. (Yay you!) But they still failed to show up. Now what? Do you ask the court to compel the non-party witnesses to appear for deposition? And/or hold them in contempt? Or should you do nothing more now, but later seek to bar them from testifying at trial because of their failure to cooperate? One of those two options is a best-practices approach. The other is a potential disaster. Jim Garrity tells you which is which, and offers takeaways and practice pointers at the end of the episode.

SHOW NOTES

Torregano v. Cohen, et al., 2021 WL 1997292, __ So. 3d __ (Ct. App. La. May 19, 2021) (verdict in favor of plaintiff reversed where trial court excluded testimony of non-party defense witnesses who failed to appear for depositions; held, error to blame party for actions of non-party witnesses)

Thompson v. Wagner, et al., 2008 WL 5087963, Case No. 3:2005-375 (W.D. Penn. December 2, 2008) (denying motion to exclude witness who failed to appear for deposition, but allowing party to depose witness if he appears for testimony at trial)

Vu v. Fouts, 924 P.2d 1129 (Colo. Ct. App. 1996) (appeals court declined to reverse trial court order barring defense witnesses from testifying at trial solely because witnesses failed to appear for their depositions; held, no reversible error in exclusion, because defendant failed to proffer their anticipated testimony to trial judge, and failed to provide other evidence upon which appeals court could determine importance of the excluded witnesses)

Card Technology Corporation v. DataCard, Inc., et al., 249 F.R.D. 567 (D. Minn. 2008) (where company executive failed to appear for deposition, court limited the topics on which the executive could testify if he eventually appeared at trial).