Your Company Was Subpoenaed for a Corporate Representative Deposition in Florida

The subpoena is addressed to the company, not to a person. It names a date, a court reporter's office, and an attachment titled "Areas of Inquiry" with fourteen numbered topics: the company's dealings with a former customer, its billing practices, its record keeping, its communications with a named individual over three years. Your company is not a party to the lawsuit. It did business with someone who is, and now one side wants the company itself to testify.

This is a corporate representative deposition, and it differs from an ordinary witness subpoena in ways that surprise owners and managers. The company has to choose who speaks, has to educate that person, and is held to the answers. Handled casually, it produces a transcript full of "I don't know" that returns as a motion. Handled with care, it is a contained event that ends the company's involvement in someone else's fight.

How is this different from subpoenaing an individual?

An individual witness testifies to what she personally saw, heard, and did. An organization testifies to what the organization knows. Under Florida's civil rules, a party may name a corporation, limited liability company, partnership, association, or government agency as the witness and describe the matters on which it wants testimony. The organization must then designate one or more people to testify on its behalf, and those people must answer about matters known or reasonably available to the organization. The rule applies to outside organizations reached by subpoena just as it applies to the parties. The designated witness's personal memory is beside the point; she speaks as the company.

Who should the company send?

That choice belongs to the company, not to the lawyer who issued the subpoena. The witness does not have to be an officer, and does not have to be the employee who lived through the events. More than one person can be designated, each for different topics. The right witness is someone who can absorb a large amount of material, answer precisely, and stay composed through hours of questioning by a lawyer looking for loose answers. Think about exposure as well: the employee closest to the events may be the person a party would most like to blame. If a party insists on questioning the chief executive personally, Florida's rules limit depositions of high-level officers who have no unique personal knowledge of the dispute.

What does the duty to prepare involve?

More than most companies expect. Because the witness answers for the organization, the organization has to educate the witness: reviewing the relevant files, speaking with the employees who handled the matter, and learning the history on every topic on the list. A designated witness who answers "I don't know" on a listed topic, when the information was reasonably available inside the company, has not satisfied the subpoena. The usual consequences are an order to return for a second session, an award of the other side's costs, or both. The duty has a limit. A company is not required to know what it cannot reasonably find out, and a witness may say so, explaining what was done to look.

Can the list of topics be narrowed?

Yes, and this is where most of the value lies. Topics must be described with reasonable particularity, and a demand for testimony about "all communications with any person" across a decade does not meet that standard. Burden counts for more when the organization has no stake in the case. The practical path is a written objection sent before the deposition, followed by a conversation with the lawyer who issued the subpoena. Most lists shrink by agreement: shorter time periods, defined subjects, and the removal of topics better answered by documents or by the parties themselves. Where agreement fails, the company can ask the court for a protective order, and should file that motion early, because filing it does not by itself excuse attendance. Sensitive business information can be covered by a confidentiality agreement that limits who sees the transcript.

What happens when questions leave the list?

They will. Examiners routinely move from the listed topics into whatever the witness happens to know. Answers outside the topics are generally treated as the individual's own testimony, not the company's, and the company's lawyer should say so on the record when it happens. The witness should not guess on the company's behalf about subjects nobody prepared her for. Preparation sessions with the company's lawyer are privileged, but documents used to refresh the witness's memory may be requested, which is a reason to choose the preparation materials deliberately.

What is the risk to a company that is only a witness?

The transcript is the company's sworn position. It can be used in this case and requested in the next one. Companies that begin as witnesses are sometimes added as defendants after a deposition reveals a role nobody had focused on, and a loose answer about the company's own practices can interest customers, competitors, and regulators who later read it. Every lawyer in the room represents a party to the lawsuit. None of them represents the company. Counsel for the company negotiates the topics, prepares the witness, attends, objects, protects privileged communications, and reviews the transcript afterward, when the witness has the right to read it and correct errors.

What should the company do when the subpoena arrives?

Calendar the date and count backward. Confirm how and where the subpoena was served, since an outside witness can generally be required to appear only in the county where it is located or does business. Preserve the records the topics describe, including email. Tell employees not to discuss the matter with either side. Identify who inside the company knows the history. Choose the witness, get the topics narrowed in writing, and prepare thoroughly. If a document request is attached, treat it as a separate project with its own review and its own deadline.

Salomon Smith PLLC represents companies and their officers subpoenaed as witnesses in South Florida litigation, from narrowing the topics through defending the deposition. If your company has been served, call (305) 297-1018 for a free consultation, or learn more about our business litigation practice.

This article is for general informational purposes only and is not legal advice.