Q: I just got a notice from the plaintiff for a deposition. A hearing for a motion to dismiss is scheduled. Do I go anyway
It is a civil tort case. The plaintiff served me by publication and I have yet to see his original complaint, yet still just got sent a notice for deposition. The plaintiff even included costs of deposition. Do I have to go? There’s a hearing for a motion to dismiss scheduled and the courts haven’t said anything regarding the notice of a deposition. If anybody could reach back out I’d appreciate it.
A:
If you are the defendant and you filed a Motion to dismiss, you must be represented by counsel. ASK YOUR ATTORNEY. In general, refusal to obey a subpoena places you in contempt of the court that issued the subpoena. Failure to obey the subpoena can result in multiple penalties which may include barring your testimony and thereby preventing you from asserting any defense.
Your situation is unusual because service by publication is not generally permitted where the location of a party is known. In other words, if the plaintiff knew where you were to issue the subpoena, they could just as easily have served you with the summons. In that case, a Motion to quash may be appropriate, provided that you are not actively evading service of process.
Again, your best advice to discuss everything with YOUR attorney who should prepare you for your deposition and accompany you to the deposition.
Tim Akpinar and Michael Ray Smith agree with this answer
A: I agree with Mr. Candiano. I’ll add that your attorney might decide to reach out to opposing counsel to negotiate a later date for the deposition, after the court rules on the motion to dismiss. However, as did Mr. Candiano, I’ll emphasize you should discuss it with your attorney. I’m merely speculating, based on incomplete knowledge, as to how your attorney might choose to approach the issue.
Tim Akpinar agrees with this answer
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