As lawyers in Charleston, we’re involved in depositions in family court cases, personal injury claims, and many more types of cases. In a previous post, “Surviving a Deposition – A Witness’s Guide,” we examined how to “survive” the questions asked during a deposition. In this post, we examine the procedure you must follow if you receive notice that your deposition is going to be taken in South Carolina.
What is a deposition?
A deposition is a pre-trial examination, under oath, of a witness or a party to a case. People who are parties to a case receive Notices of Deposition through their attorneys, and the attorneys to the case will sort out the logistics of taking the deposition between. However, sometimes the parties need to depose people who are simply independent witnesses and not parties to the case. In these instances, the Notices of Deposition should be accompanied by a Subpoena, possibly a Subpoena Duces Tecum. These witnesses are often left wondering what their responsibilities are in such an instance.
What do I do if I receive a Notice of Deposition in South Carolina?
If you receive a Notice of Deposition in South Carolina for a case that you are not a party to, you still have to respond to it and attend the deposition. Specifically, if you are a South Carolina resident, then you may be compelled to give a deposition in any county in which you reside or in which you transact business in person.
What if the deposition conflicts with my schedule?
Most lawyers will be cooperative with witnesses who aren’t parties. There is nothing wrong with calling the lawyer who signed the deposition notice, explaining your situation, and asking that the deposition be rescheduled to a time convenient for all. If the lawyer doesn’t want to work with you, then you may have to hire your own lawyer to file a motion to “quash” the deposition and to ask that it be rescheduled
Do I need to bring anything to a deposition?
If a Subpoena Duces Tecum was served with the deposition notice, read it carefully. This type of subpoena directs you to bring certain documents to the deposition. If you are opposed to providing any of these documents, you should contact your own attorney and determine if you have grounds to object to producing them and decide whether you need to take action, such as filing a motion to quash with the court. Also, be aware that a Subpoena Duces Tecum may require that documents be produced either on the date or sometime before the deposition date.
Am I entitled to compensation for appearing at a deposition?
A witness is entitled to $25.00 per day, plus mileage to and from the witness’ residence, for attending a deposition. There is no difference in compensation if the deposition lasts 1 hour or 7 hours. The check should be served with the deposition notice. If you plan to resist attendance by filing a motion or otherwise, then you are not entitled to cash the check unless the deposition ultimately goes forward.
What if I don’t know anything about the case?
Sometimes, lawyers receive bad information about the identities of witnesses. If you truly know nothing about the case, there is nothing prohibiting you from contacting the lawyer who signed the notice and informing him or her of this fact. The lawyer may decide to withdraw the notice, but if he or she does not, then you are still required to attend, even if most of your answers will be “I don’t know.”
What if I don’t want to answer the questions or if I don’t show up for the deposition?
If you refuse to answer questions or if you just don’t show up, you potentially subject yourself to contempt of court or other sanctions. Generally, you are required to answer all questions. However, sometimes a privilege applies that would protect you. For example, spouses are not required to testify against each other over certain matters. There may be other instances where you are justified in not answering. For example, if you witnessed a car accident, the deposing lawyer should not ask you about your sex life. If you do choose not to answer a question, you may be required to file a motion to quash with the court within 5 days after the deposition.
How can I be served with a Notice of Deposition?
Notices are generally served in one of two manners. First, they may be served by having a process server deliver the papers in person to the witness or leaving the papers at the witness’ residence with someone of suitable age and discretion. “Suitable age and discretion” could be someone under 18 years of age in certain instances. Another manner is by certified mail. If you have any questions regarding the service of your particular Notice of Deposition, then you should have your own attorney review it.
Should I bring my own lawyer with me to the deposition?
Every case is different, and you never know when your testimony could show that you are liable for something. Further, you you may wish to assert some type of privilege and not answer a question, as described above. You should consider the costs of hiring an attorney, which could be relatively low for something like a simple deposition, against the potential for liability you have in a particular case. The attorneys at Futeral & Nelson have issued countless Notices of Deposition in our cases and are familiar with the rules surrounding them. If you receive a Notice of Deposition, contact the lawyers at Futeral & Nelson to discuss the particular situation so you know your rights and obligations in responding to the Notice.