Refuses to produce witness for deposition

[alexanderkos]

Hello,
I have sent a notice of deposition to a partner of a llp that I know has knowledge in the fraud suit that I have against the firm. This is a local firm and there are about 4 partners in the firm. The opposing council has declared they will not produce this partner for the deposition claiming of course that he is an "apex individual". I think this would be easily disproved in court. When I informed the opposing council that I would subpoena the partner for deposition the answer I got was my subpoena would be improper as the witness has counsel and he would quash and seek sanctions. How would I then proceed and can the opposing council really do as he says. Should I seek a motion to compel now...Can I do so simply on the opposing counsels statement that he refuses to produce his client. The deposition was scheduled for late May.
Thank You
Michael

 

[army judge]

What do you wish to accomplish by deposition, that you can't accomplish at trial?

I don't endorse depositions, and I rarely allow my clients to participate in them.

I see little advantage in the process for either side.


I'd rather grill someone in a courtroom before a judge and jury, than a boardroom with a stenographer.


It only exposes the theory of your case unnecessarily and preliminarily.

 

[jharris352]

The only purpose for a deposition is as an investigatory tool or to pin someone down to testimony you don't want changed later. If you are determined to have depositions then yes use the motion to compel.

 

[fredrikklaw]

Softly, soflty, catchy apex monkey!

But of course!

They have gotten their 'you-know-what' in a twist because you have summoned one of the big honchos for an Apex Deposition, and while they cannot willy-nilly ignore a deposition notice or a deposition subpoena, they can however move for a Protective Order and not sanctions (on a noticed motion only) excluding the Apex Individual from the proceedings on a certain ground.

You see, in order to bring the apex individual to the Q & A table, you have to (1st) show that you have already explored and exhausted alternative and "less intrusive" means of obtaining the information you require but to no avail, and (2nd) that the apex individual is sufficiently connected with the case and he is THE only source from which the information can be extracted.

If you have already done the alternative exploration and are sure that the apex is the only one who can provide the information necessary to your cause, then I suggest you prepare and serve an amended notice of deposition including with it this time your argument why the apex's attendance at the deposition is indispensable as well as an affidavit attesting to the same.

There are two for and against case laws which you should read up on and would be quite useful to cite in your argument. The 'for' case is Wal-Mart Stores, Inc. v. Street (Tex. 1988) 754 S.W.2d 153 in which Sam Walton himself (the founder of Wal-Mart) was required to provide deposition testimony, and the 'against' case is Liberty Mutual Ins. Co. v. Superior Ct. (1992) 10 Cal.App.4th 1282, 1289 in which a protective order was granted because plaintiff failed to meet the threshold requirement for compelling the attendance of an apex individual.

Happy Trails!

fredrikklaw

 

[jedoe]

That's terrible, people will do just about anything.