Christensen & Jensen | 257 East 200 South, Ste 1100 Salt Lake City, Utah 84111


Deposition subpoena compelling lawyer as a witness

Houweling’s Nurseries Oxnard, Inc. v. Robertson Case

Generally, a party’s lawyer is not called as a witness in a lawsuit.  However, where a law firm is involved in communications or otherwise with an opposing party prior to the lawsuit, then a lawyer might be served with a deposition subpoena compelling their testimony regarding their involvement with the opposing party.  Even still, questions regarding attorney-client privilege and attorney work product may arise during the deposition, oftentimes resulting in a motion to modify the deposition subpoena beforehand.

Law Firm Communicated with Defendant in Conjunction with His Work for Plaintiffs

In Houweling’s Nurseries Oxnard, Inc. v. Robertson, the defendant was initially hired to work as a consultant for the plaintiffs in connection with a hydroponic nursery project in Mona, Utah.  Plaintiffs also hired a Salt Lake city law firm to assist with different aspects of the project.

Defendant regularly communicated with the law firm’s attorneys in connection with the project, and the attorneys appeared to have firsthand knowledge regarding the nature and quality of defendant’s work on the project.  The law firm is also plaintiff’s counsel in the underlying lawsuit.

In July 2014, plaintiffs terminated defendant’s consulting agreement.  Defendant claims that he has an ownership interest in the nursery project, and that plaintiffs have never paid him in full for his consulting services.  The plaintiffs have denied these allegations.

Defendant Issues Subpoena to Plaintiffs’ Counsel’s Law Firm

As part of this litigation, defendant issued a subpoena to plaintiffs’ counsel’s law firm.  In response, the law firm agreed to appear at the deposition but only subject to a limited subject matter waiver.  After moving to modify the first deposition subpoena, the law firm subsequently moved the court to modify the second amended deposition subpoena issued by the defendant.  The motion to modify the deposition subpoena stated that certain deposition topics listed in the subpoena may invade the attorney-client privilege and/or work product protected information, and that the law firm does not have a witness with knowledge about one of the topics listed in the subpoena.

Court Denies Motion to Modify Deposition Subpoena

After considering the law firm’s motion to modify, the district court denied the motion.  There, the district court concluded:

Privilege issues generally must be handled on a question-by-question basis. Particularly under the circumstances—namely where Plaintiffs’ transactional and trial counsel are witnesses—the court will not preemptively strike or limit the deposition topics. As with any other deposition, Plaintiffs and [their counsel’s law firm] retain the ability to object during the course of the deposition to questions that they reasonably believe invade privilege.  With regard to topic number 4, there is no need for the court to modify or strike the topic based on [plaintiffs’ counsel’s law firm’s] representation that it lacks information on that topic. As with any other Rule 30(b)(6) deposition, [plaintiffs’ counsel’s law firm’s] designated deponent or deponents “must testify about information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). [Plaintiffs’ counsel’s law firm’s] needs not testify on a topic about which [the law firm] cannot testify, but Defendant is still entitled to inquire into the topic.

There are two major takeaways from the judge’s order.  First, privilege issues must be decided during the deposition, and a court will not “preemptively strike or limit [] deposition topics” even in the case of a deposition subpoena issued to a law firm.  Second, a claim of lack of knowledge on behalf of a law firm on a certain deposition topic is not enough to modify or strike that deposition topic in the context of Fed. R. Civ. P. 30(b)(6).