16 Trial Lawyer • Summer 2023 Third-Party Witnesses Continued from p 15 containing “confidential health information.” ORCP 55 D. If the recipient of the subpoena serves the issuing party with timely written objections, the recipient’s obligation to produce documents is suspended, unless and until the issuing party moves for a court order to compel production. ORCP 55 A(7)(a)(ii); FRCP 45(d)(2)(B) (i)–(ii). Interestingly, except in the case of confidential health information under ORCP 55 D, although the rules require advance notice to other parties before issuing a document subpoena, they do not provide a mechanism by which a party, as opposed to the recipient of the subpoena, can simply object and suspend production of subpoenaed documents. Instead, the non-issuing party must move the court to quash the subpoena or issue a protective order. To reduce the likelihood that a subpoena will yield objections rather than responsive documents, the requests should be specific and narrowly tailored so that compliance with the subpoena does not impose an undue burden on the witness. Depending on the situation, you also may be able to avoid written objections by contacting the person ahead of serving the subpoena to open a dialogue and invite them to contact you with questions or concerns about the requests. You can also include this invitation in a cover letter accompanying the subpoena. Witness declarations Sworn declarations from third-party witnesses can serve many purposes, from supporting or defeating dispositive motions to helping to drive settlement of a case. They can also be useful simply to preserve and establish a witness’s testimony on key issues early in the case, when events are more recent and memories clear. Whether to ask third-party witnesses to sign declarations, and when and if to share the declarations with the other side, are important strategic decisions that depend on the circumstances of the case, as well as the stage and pace of litigation. Understandably, sometimes witnesses are not excited to jump at the chance to sign a declaration with big, bold letters stating, “under penalty of perjury.” It can be helpful to explain, without pressuring the witness, how the declaration will benefit your client and how you intend to use the declaration (i.e. to submit to the court in support of written motions or responses). Assure the witness you only want to include accurate and truthful information, and you are glad to remove or revise anything they are not sure about. Where appropriate, I sometimes also explain that, although I of course have no control over whether the other side subpoenas the witness, a signed declaration may obviate the need for me to subpoena the witness to testify. A short time after receiving the company’s initial disclosures in John’s case, we were able to produce to opposing counsel a stack of declarations in which the witnesses confirmed that John had not contacted them, that none of them had done any business with John since his termination, and that some of them had solicited John to work with them and he had declined. Litigation ended soon after. Deposing third-party witnesses For a third-party witness likely to testify for the other side, subpoenaing the witness for a deposition is an effective way to obtain information and sworn testimony you can use in your own case. One of the goals of the deposition may be to convert the opponent’s witness into your own by eliciting testimony that aligns with your client’s position. were relatively simple because I only needed answers to a handful of specific questions: Had the witness had any contact with John after his termination? Had John initiated any contact? Had the customer attempted to contact John and, if so, how had John responded? Did John solicit business from the witness? Had the witness conducted any business with John after his termination? Of course, even though my specific questions were few, I spent a good amount of time connecting with and talking with the witnesses. In the process, I ended up learning even more helpful information for John’s case than I had anticipated, including that John is widely regarded as one of the top talents in his field and that several customers had stopped doing business with his former employer not because they had been wooed away by someone else, but because they were concerned the company could no longer offer the same quality of work without John there. Some of the witnesses even offered that the only reason they had ever done business with the company in the first place was because they had wanted to work with John. Document subpoenas When a lawyer needs documentary evidence from a third party who is either unwilling or unable to provide documents voluntarily, the lawyer may need to issue a subpoena duces tecum to require the third party to produce the materials. The applicable procedural rules, ORCP 55 in Oregon state court and FRCP 45 in federal court, govern the content, service, and procedural requirements of subpoenas. In both state and federal courts, the issuing party must serve all other parties with notice and a copy of a subpoena before serving a third-party subpoena for documents. ORCP 55 C(3) (a); FRCP 45(a)(4). Note that special procedures apply in the event that the subpoenaing party seeks documents ...third-party witnesses typically are not concerned about how their testimony may affect the outcome of the case.
RkJQdWJsaXNoZXIy MTY1NDIzOQ==