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Deposition Question (COURTS, LAWYERS & LITIGATION)

Thu, 05 May 2005 16:59:00 GMT
Tags: attorney, courts, damages, deposition, employer, former, law, lawyers, litigation, state, sued, texasbri, write

What is the name of your state? TEXAS
I am being sued for damages by a former employer, I had an attorney help me write the answer and change of venue documents, since it is in another county about 200 miles away he listed me as Pro se.
A hearing has been scheduled for June 28 on the venue issue.
Now my question, the other attorney (plainiff's) has scheduled a deposition for me (defendant) May 18, 2005, am I required to go to his deposition? Or can I respond via letter that we will hear the issue before the court and I will not be attending the deposition?

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  • Thu, 05 May 2005 20:21:00 GMT(1)
  • Just to be clear. I am the one being sued and they are listing me as a "witness".
    How can I be a witness for them if I am trying to defend myself.
    Sorry if these are stupid questions but I have never been involved in any legal dealings.
  • Fri, 06 May 2005 08:34:00 GMT(2)

  • Quote:

    Originally Posted by meganproser

    File a motion for a protective order.

    I think megan meant to say:
    "you could file a motion for a protective order, if you would like, here is relevant links/citations to help you make your decision".
    That would be providing the correct wording to help with research , not practicing law.
    The best advice you have received here is:
    Hire a Lawyer!
  • Fri, 06 May 2005 05:36:00 GMT(3)

  • Quote:

    Originally Posted by meganproser

    File a motion for a protective order.
    Just say the planned deposition location subjects you to unfair burden and expense. Ask the court to issue a protective order preventing a deposition from being scheduled prior to the disposition of your motion for change of venue.
    Cite TRCP 199.4 Objections to Time and Place of Oral Deposition which reads:
    A party or witness may object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of deposition. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined.
    I think I waited too long, I got it Tuesday and today is three business days after receiving it. I was too busy at work to notice and they will not accept a fax
    NOTE: Check 199.4 in the most current TRCP before quoting from it in your motion. The TRCP I found was from 1999 and may have been revised since then.
    Just to be clear. I am the one being sued and they are listing me as a "witness".
    There are "party witnesses" and non-party witnesses, but anyone who is offering testimony, is a witness.
    How can I be a witness for them if I am trying to defend myself.
    You ARE going to hire an attorney at some point right? YES
    Sorry if these are stupid questions but I have never been involved in any legal dealings.
    No problem, I liked your questions!


    Just say the planned deposition location subjects you to unfair burden and expense. Ask the court to issue a protective order preventing a deposition from being scheduled prior to the disposition of your motion for change of venue.
    Cite TRCP 199.4 Objections to Time and Place of Oral Deposition which reads:
    A party or witness may object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of deposition. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined.
    I think I waited too long, I got it Tuesday and today is three business days after receiving it. I was too busy at work to notice and they will not accept a fax
    You ARE going to hire an attorney at some point right? YES
    I'm sick over this, I haven't slept well in 2 months.
  • Fri, 06 May 2005 07:48:00 GMT(4)
  • All is not lost, you really need to look at more than the one section of Texas Rules of Civil Procedure that Megan cited, which has basis in Rule 176 which I believe will clarify things for you. What county is the law suit filed in? This is important as additional rules may apply. What county was the subponea served in? Where is the place of deposition? How far between these places in miles? Who refused the Fax service? Please note that you can file for injunction in your county. Here are some links to
    http://www.megalaw.com/tx/top/txcivpro.php
    Revisions only to 1999 Rules
    http://www.supreme.courts.state.tx.us/rules/TRCP/
    http://www.megalawserve.com/states/tx.php section 176
    Rule 176. Subpoenas
    176.1 Form.
    Every subpoena must be issued in the name of "The State of Texas" and must:
    1. state the style of the suit and its cause number;
    2. state the court in which the suit is pending;
    3. state the date on which the subpoena is issued;
    4. identify the person to whom the subpoena is directed;
    5. state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
    6. identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;
    7. state the text of Rule 176.8(a); and
    8. be signed by the person issuing the subpoena.
    176.2 Required Actions.
    A subpoena must command the person to whom it is directed to do either or both of the following:
    1. attend and give testimony at a deposition, hearing, or trial;
    2. produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.
    Rule 176.3 Limitations.
    1. Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 15 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 2 .2 may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).

    2. Use for Discovery. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.
    Rule 176.4 Who May Issue.
    A subpoena may be issued by:
    1. the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;
    2. an attorney authorized to practice in the State of Texas, as an officer of the court; or
    3. an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 2 , or a notice under Rule 2 5.3, and who may also serve the notice with the subpoena.
    Rule 176.5 Service.
    1. Manner of Service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record.
    2. Proof of Service. Proof of service must be made by filing either:
    1. the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or
    2. a statement by the person who made the service stating the date, time, and manner of service, and the name of the person served.
    Rule 176.6 Response.
    1. Compliance Required. Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition hearing, or trial from day to day until discharged by the court or by the party summoning the witness.
    2. Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.
    3. Production of Documents or Tangible Things. A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.
    4. Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena - before the time specified for compliance - written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.
    5. Protective Orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b) - before the time specified for compliance - either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.

    6. Trial Subpoenas. A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).
    Rule 176.7 Protection of Person from Undue Burden and Expense.
    A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.
    Rule 176.8 Enforcement of Subpoena.
    1. Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
    2. Proof of Payment of Fees Required for Fine or Attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.
    (Added Aug. 5, 1998, and amended Nov. 9, 1998, eff. Jan. 1, 1999.)
    Texas Statutes Art. 2.11 BUS. CORP. ACT. Service of Process on Corporation
    A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the de in the same manner as service is made on unknown shareholders under law. Notwithstanding any disability or reinstatement of a corporation, service of process under this section is sufficient for a judgment against the corporation or a judgment in rem against any property to which the corporation holds title.
    Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Sec. D added by Acts 1999, 76th Leg., ch. 1481, 4 , eff. Sept. 1, 1999.
    .
  • Thu, 05 May 2005 23:00:00 GMT(5)
  • File a motion for a protective order.
    Just say the planned deposition location subjects you to unfair burden and expense. Ask the court to issue a protective order preventing a deposition from being scheduled prior to the disposition of your motion for change of venue.
    Cite TRCP 199.4 Objections to Time and Place of Oral Deposition which reads:
    A party or witness may object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of deposition. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined.
    NOTE: Check 199.4 in the most current TRCP before quoting from it in your motion. The TRCP I found was from 1999 and may have been revised since then.
    Just to be clear. I am the one being sued and they are listing me as a "witness".
    There are "party witnesses" and non-party witnesses, but anyone who is offering testimony, is a witness.
    How can I be a witness for them if I am trying to defend myself.
    You ARE going to hire an attorney at some point right?
    Sorry if these are stupid questions but I have never been involved in any legal dealings.
    No problem, I liked your questions!
  • Fri, 06 May 2005 14:04:00 GMT(6)
  • I have contacted the attorney that help me the first time,
    I am awaiting his call, he does not want to take the case until he is sure it is going to be in this venue.
    However, I will employee his services again to help me with answering the Notice of Deposition
    thanks everyone, but i feel like I am getting too much conflicting information.
    I need an attorney's help.
  • Thu, 05 May 2005 17:36:00 GMT(7)

  • Quote:

    Originally Posted by texastee

    What is the name of your state? TEXAS
    I am being sued for damages by a former employer, I had an attorney help me write the answer and change of venue documents, since it is in another county about 200 miles away he listed me as Pro se.
    A hearing has been scheduled for June 28 on the venue issue.
    Now my question, the other attorney (plainiff's) has scheduled a deposition for me (defendant) May 18, 2005, am I required to go to his deposition? Or can I respond via letter that we will hear the issue before the court and I will not be attending the deposition?

    Q: Now my question, the other attorney (plainiff's) has scheduled a deposition for me (defendant) May 18, 2005, am I required to go to his deposition?
    A: Yes.
    Q: Or can I respond via letter that we will hear the issue before the court and I will not be attending the deposition?
    A: If you do this, you will be met with (among other possibilities) a motion to strike your pleadings which is fancy lawyer talk for "You lose and do NOT come back to this court or any other court in the universe."
  • Fri, 06 May 2005 13:33:00 GMT(8)
  • Texastee: Contact the attorney who noticed you TODAY and let him know you will NOT be appearing for the scheduled deposition because, among other concerns, you do not have counsel available to represent you that day. Email that information to him if you can and keep a record of the email...attach a copy of it to the Motion for Protective Order. Also, call his office and leave the same message.
    File the Motion for a Protective Order as soon as you can get it typed up. There are sample motions available all over the net...just google Motion for Protective Order. Check the rules of the court and see if you are required to file a Memorandum with the Motion. Mention in your motion that you ARE going to hire an attorney. File the motion immediately via overnight mail. Yes, its late, but the court should accept it because there is still plenty of time before the scheduled deposition.
    Just make sure you tell the court that you made every effort to notify the attorney of your plan to file the Motion. Don't forget to include a certificate of service which tells the court that the attorney has been sent a copy of the motion and any attachments.
    Feel free to ask for more assistance if you need it!
  • Fri, 06 May 2005 13:41:00 GMT(9)
  • Regardless of which document OP received, the proper procedure is to file a motion for protective order and none of the TRCP materials you cited are relevant to that motion.
  • Fri, 06 May 2005 13:57:00 GMT(10)

  • Quote:

    Originally Posted by meganproser

    Texastee: Contact the attorney who noticed you TODAY and let him know you will NOT be appearing for the scheduled deposition because, among other concerns, you do not have counsel available to represent you that day. Email that information to him if you can and keep a record of the email...attach a copy of it to the Motion for Protective Order. Also, call his office and leave the same message.
    File the Motion for a Protective Order as soon as you can get it typed up. There are sample motions available all over the net...just google Motion for Protective Order. Check the rules of the court and see if you are required to file a Memorandum with the Motion. Mention in your motion that you ARE going to hire an attorney. File the motion immediately via overnight mail. Yes, its late, but the court should accept it because there is still plenty of time before the scheduled deposition.
    Just make sure you tell the court that you made every effort to notify the attorney of your plan to file the Motion. Don't forget to include a certificate of service which tells the court that the attorney has been sent a copy of the motion and any attachments.
    Feel free to ask for more assistance if you need it!


    texastee, this is not good advice. This is NOT the way things work in the real world. The lawyer on the other side is fixing to cream you good.
    The best advice you have gotten so far is to get a lawyer immediately!
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