Northern District of Texas Blog

Magistrate Judge Horan’s decision in Jackson v. Stevens Transp., Inc., 3:14-CV-1416-M, 2015 WL 221087 (N.D. Tex. Jan. 15, 2015), notes the rule that, in general, employees of one’s opponent must be subpoenaed to sit for deposition, absent the opponent’s agreement to produce them voluntarily. Judge Horan wrote:

“A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. Rather, the employee is treated as any other non-party; before being compelled to testify, he or she must be served with a subpoena pursuant to Federal Rule of Civil Procedure 45.” Karakis v. Foreva Jens Inc., No. 08–61470, 2009 WL 113456, at *1 (S.D. Fla. Jan.19, 2009) (citing authorities). “A party need not comply with Rule 45 and issue a subpoena if a non-party will consent to having his deposition taken by notice alone.” Morawski v. Farmers Tex. Cty. Mut. Ins. Co., No. 3:14–mc–21–D–BN, 2014 WL 717170, at *1 (N.D. Tex. Feb.25, 2014). “Absent such consent, however, to obtain an order compelling a non-party to appear for a deposition, the party seeking the deposition must not only notice the deposition, but must also properly serve the non-party with a deposition subpoena pursuant to Rule 45.” Id. (internal quotation marks omitted); see also McMahon v. Presidential Airways, Inc., No. 6:05–cv–1002–Orl–28JGG, 2006 WL 5359797, at *1 (M.D. Fla. Jan.18, 2006) (“Although most corporate litigants voluntarily produce subordinate employees, if the corporate party refuses to produce the person, the person must be subpoenaed.”).

In the case at hand, Judge Horan ruled that the relevant individual was not a “managing agent” of the opposing party such that he could not be compelled to sit for a deposition absent a subpoena:

Absent consent for Mr. Spratling to simply be noticed for deposition, which is lacking here, Plaintiff therefore must seek Mr. Spratling’s deposition through a Rule 45 subpoena. Plaintiff’s counsel admits that Plaintiff has not done so, and Plaintiff’s notice to Defendant’s counsel cannot qualify as a valid subpoena where there is no evidence that, among other requirements that Rule 45 imposes, Plaintiff personally served Mr. Spratling with a subpoena or tendered the required witness fees and mileage allowance.

Jackson, 2015 WL 221087, at *5.

I note that it typically costs less than $200 to serve someone with a subpoena (i.e., the required mileage and witness fee, plus the process server’s fee is not terribly expensive). This is presumably far less than it cost the parties to brief the motion-at-issue in Jackson, and attend and argue the Court’s hearing. A couple of things that could have justified the parties’ dispute (I have no idea, of course, what motivated the parties here)—the subpoenaing party thought the witness was a “managing agent” of the party (in which case a subpoena would not be necessary), the witness could not be located so that a subpoena could be served on him, unsettled (or relatively unsettled) law (i.e., whether non-N.D. Tex. case law would be found to control the situation at issue here), parties’ taking stands on principle (regardless of the cost), or the witness being located in a far-flung jurisdiction such that any enforcement proceedings would be relatively expensive (i.e., generally, if a subpoenaed witness is not within the Northern District of Texas, a motion to enforce the subpoena has to be filed in the court where compliance with the subpoena would take place).