Compelling the trial testimony of a party is often treated differently from compelling the trial testimony of specified individuals, at least in Federal Courts.
In Conyers v. Balboa Insurance Co., 2013 WL 2450108 *1 (M.D. Fla. June 5, 2013), the Plaintiffs served a subpoena "to the 'Corporate Representative of Balboa Insurance Company with the most knowledge as to the affirmative defenses, discovery responses, claim denial and selection of engineers.'” The subpoena purported to compel the attendance of a corporate representative at trial, according to the defendant's reported argument and the Court's opinion in this case.
The insurance company attorneys filed a motion to quash the subpoena on three grounds.
First, they contended, the subpoena was improper in that it sought to compel the attendance of an unidentified corporate representative and not "a specifically identified person".
Second, the insurance company's attorneys argued that the subpoena was served without witness fees and should be quashed for that reason as well.
Third and finally, they argued that any witness who would qualify as a designated corporate representative of the insurance company party would have to travel from "'California, Arizona, or Texas'" which are all more than 100 miles from the place of trial in Tampa, Florida and thus the Federal Rules of Civil Procedure, specifically Fed. R. Civ. P. 45(c)(3)(A)(ii), did not authorize any such person to travel more than 100 miles in order to attend trial.
Taking the first ground first, the Federal Court ruled that the trial subpoena at issue is a subpoena compelling a party to appear at trial. The party compelled to appear is a corporation, namely, an insurance company in this case. Corporations can only appear at trial through their corporate representatives. Further, this subpoena was not objectionable as an attempt to compel a deposition; it did not seek to compel a deposition but instead it sought to compel a party to appear at trial.
Once the Court made that ruling on the first objection, the remaining two objections to this trial subpoena were pretty easily dispatched in this case. The Plaintiffs' attorneys not unreasonably pointed out that they did not know who the as-yet-undesignated corporate representative would be or how far she or he would have to travel to attend the trial, but that "they are willing, ready, and able to pay any applicable fees and costs once the corporate representative has been identified. Accordingly," said the Judge in this case, "Balboa's arguments concerning nonpayment of fees and costs are unavailing." Conyers v. Balboa Insurance Co., 2013 WL 2450108 *2 (M.D. Fla. June 5, 2013).
Further, the hundred-mile-limit did not apply to the corporate representative subpoenaed for trial in this case. The Court ruled in this regard that the trial subpoena did not seek to compel the attendance of any specified individual but instead sought to compel the attendance of a corporate party's representative. Accordingly, the Court quashed the insurance company's motion to quash the trial subpoena in this case. Conyers v. Balboa Insurance Co., 2013 WL 2450108 *1-*2 (M.D. Fla. June 5, 2013).
There are at least two issues in this case which are not reported in the Court's opinion, and the first has to do not with the 'process' but instead with 'service of process'. The Plaintiffs served the trial subpoena "upon counsel for Balboa". Conyers v. Balboa Insurance Co., 2013 WL 2450108 *1 (M.D. Fla. June 5, 2013). The Court does not say how service was made, but it would be reasonable to expect that the trial subpoena in this case was served by mail rather than hiring a process server to serve opposing counsel with this subpoena. In any case, no objection to service was made, and that might well be why. However, if a subpoena is 'served' by U.S. Mail, is there any difference from 'serving' a Notice to Appear At Trial by U.S. Mail, which frequently is the case? What, if anything in short, is significant about a trial subpoena in this situation as opposed to a 'notice'?
A second question which is not reported in the Court's opinion in this case is more substantive. What in fact is the source of authority for one party to compel another party to appear at trial, let alone also to compel another party to testify at trial? It is of course far and away the default choice of lawyers in civil cases to have their clients-parties appear at trial, and ordinarily to present their testimony, as well. Once they appear, they can certainly be subpoenaed. But this case stands for the proposition that before trial, one party can make another party appear at the later trial and perhaps can make another party testify at the trial which is yet to come. But, to say again in different words, by what authority can parties do this?
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