Discussion:
What is the name of your state? California
I was the VP of Marketing for a Hayward, CA company that is now suing a Utah company over a perceived trademark and patent infringment. I have now been deposed by the defendant's attorney, although I have not worked for the plaintiff company in seven months and do not have anything beyond my memory to provide.
The company I used to work for cannot represent me since I am no longer an employee. Additionally, I have signed a non-disclosure agreement with my past company that disallows me from sharing information about them.
I am not sure what to do. I don't really want to spend a lot of my own money on a personal attorney for a dispute between two parties I care nothing about. Any suggestions?
Answer:
I assume this is a Federal Court case?
You do not need an attorney for your deposition unless YOU have something to hide.
As per FRCP 45 (2)…A subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is to be taken.
In this particular situation, the defense attorney, presuming he is qualified to practice in the district court in which the case is pending, merely had to issue and sign a subpoena for the district court of the district where the deposition is going to take place. See FRCP 45 (a)(3)
Whether or not the subpoena was properly issued, you have not been given enough notice and could move to quash on those grounds. Eventually you are going to be deposed anyway but here is what I would do:
Today is a legal holiday and the court will be closed. I would try to contract the defense attorney first thing in the morning (holiday or not he may very well be working), to see if he would voluntarily make some changes.
If you prefer to have the deposition re-scheduled, tell him he hasn’t given you enough notice and resolve that issue with him. If he won’t reschedule, move on to the other problem of your confidentiality agreement.
Explain the non-disclosure issue to him and tell him you have to file a motion to quash under FRCP 45 ©(3)(B)(i) on Monday, unless he has a better idea.
Keep in mind that the attorney can use anything you say on the phone if it will help his case, he is NOT your friend (unless you want the other side to loose), and you can move to quash his subpoena until the court settles the confidentiality issues.
The attorney was required to include a copy of FRCP 45, Parts C & D with the subpoena. This information advises you of your rights as a witness. Notice that FRCP 45 ©(3)(B)(i) says a subpoena can be quashed or modified if it requires disclosure of a trade secret, or other confidential research, development, or commercial information.
If you can’t reach the attorney today, prepare a motion to quash (it need not be any formal thing, just a statement of your problem) and get it to your district court first thing Monday. Email or fax a copy of the motion to the defense attorney and call them to notify them of it as well. You want to give the defense attorney as much time as possible to notify the other party that the deposition is cancelled for Tuesday.
Come back and give us an update in the civil litigation forum!
*I am NOT an attorney.
Answer:
Discussion on this thread is going on in the other forum.
However:
The attorney was required to include a copy of FRCP 45, Parts C & D with the subpoena. This information advises you of your rights as a witness. Notice that FRCP 45 ©(3)(B)(i) says a subpoena can be quashed or modified if it requires disclosure of a trade secret, or other confidential research, development, or commercial information. Maybe, but I doubt it -- if there are patents at stake, that means that the underlying trade secrets at stake, and that means there is almost certainly a protective order in place, which means that the subpoena cannot be quashed because it requires disclosure of secrets -- handling of the secrets is covered in the protective order.