Whether you work for a large or small company, you may find yourself being served with a subpoena to testify at a deposition, even when you or the company for which you work is not a named party to the underlying litigation. However, many people are unfamiliar with what deposition is or how it is conducted. Upon receiving a subpoena, your first instinct will usually be to contact the law firm who served you with the subpoena in order to see what it is they are looking for or what the underlying litigation is about.  While this reaction is perfectly normal, the law firm issuing the subpoena may not necessarily be forthright with you depending upon the nature of the litigation and the information they are seeking from you.

If you are served with a subpoena to testify at a deposition, you should first speak with your supervisor and/or human resources director to determine how they want to handle a response to the subpoena. This is especially true where your company is not a named party to the litigation, but may have information pertinent to the litigation. If your employer allows you to appear for a deposition without the necessary preparation, the company could risk being named as a defendant by overzealous counsel.

Companies whose employees are served with a subpoena to testify at a deposition would be wise to consult with an attorney to prepare for the deposition. Consulting with a qualified attorney in advance of appearing for a deposition can alleviate your anxiety and, more importantly, educate you as to the deposition process. It is important that you understand that you are testifying under oath and that your testimony is being recorded for possible use at trial. Equally important is the fact that you understand the questions being asked by counsel at the deposition. If, for example, you do not understand the question being asked, it is your right to require the attorney to rephrase and/or explain the question. If you guess at a question, you could give a response for which you did not intend. Providing information by mistake can result in you or your company being named as a defendant in an amended complaint.

Some companies do not feel compelled to retain counsel to prepare an employee who is called upon to testify at deposition. The belief is that they are not yet a party to the litigation, and therefore have no need to retain counsel. However, an ill-prepared witness who is not educated on how the deposition process works may in fact provide testimony that leads to the employer being named as a party in the litigation.

To learn more about the how to prepare for a deposition, feel free to contact me at or call me at (973) 696-8391, ext. 222.