Subpoenaed to Testify About a Former Employer: What Florida Witnesses Should Know

You left the company three years ago. This morning a process server found you at your new office with a subpoena. A customer of your old employer is suing it, and one side wants your testimony about what you saw while you worked there. By the afternoon the company's lawyer has called, cordial and reassuring, offering to represent you at the deposition at no cost to you.

Former employees are among the most sought-after witnesses in business litigation, and among the least protected. You no longer have the company behind you, you may not know what the case is about, and each side has plans for your testimony. The decisions made in the first few days, especially about who speaks for you, shape everything after.

Why do lawyers want former employees?

Because you know how things worked, and nobody controls you. Current employees are prepared by company counsel and have a paycheck to consider. A former employee can describe how decisions were made, who knew what, and where the documents are, without that pressure. For the same reason the lawyer suing the company may contact you directly. Ethics rules generally permit that contact with former employees, though the lawyer may not ask you to reveal the company's privileged communications. You are not required to speak informally with either side. Expect both to be courteous. Each is working out whether you help or hurt its case, and neither is looking out for you.

Should you accept the company's lawyer?

The offer is real and frequently reasonable, but understand what it is. That lawyer's client is the company, and the lawyer's duty runs to the company. Where your interests and the company's are the same, shared representation saves you money and trouble. Where they may diverge, it is a problem: if your own conduct is in question, if the company may find it convenient to blame a departed employee, if you have claims of your own against the company, or if your truthful testimony will hurt its case. Ask direct questions before agreeing. Who is the client? Who is paying? Will what I tell you be shared with the company? In some situations the company will pay for a separate lawyer of your choosing, and it costs nothing to ask. If you were an officer or director, the company's governing documents or your employment agreement may entitle you to have legal expenses advanced, so look before assuming you must pay.

Does a confidentiality agreement stop you from testifying?

No. A private contract cannot override a subpoena, and testimony compelled by legal process does not breach an agreement to keep information confidential. The agreement still matters in three ways. Many require you to notify the company when you receive a subpoena, so that it can seek protection for sensitive information; give that notice. Confidential business information can be covered by a protective order limiting who sees the transcript. And the agreement continues to restrict what you volunteer outside the deposition room. A clause forbidding disparagement does not prohibit truthful testimony under oath.

What about your conversations with the company's lawyers?

Those are different from ordinary business information. Communications you had with the company's attorneys while you were employed, for the purpose of legal advice to the company, are privileged, and the privilege belongs to the company. It survived your departure, and you cannot waive it. If you are asked about those conversations, the proper course is to decline to describe them and say why, whether or not company counsel is present to object. Be careful about the present, too. If the company's lawyer is not representing you, what you say to that lawyer while preparing may not be protected at all.

What should you do with documents you kept?

Nothing, until you have advice. Many people leave a job with files, emails, notes, or phone data from their time there. Deleting any of it after receiving a subpoena is destruction of evidence, with consequences far worse than whatever the material shows. Handing it informally to one side creates a different problem, because some of it may belong to the company or be privileged. The subpoena may demand the documents, the company may demand their return, and both demands can be valid. Personal notes, calendars, and text messages about the events are generally fair game. If you hold material of this kind, tell your own lawyer exactly what it is before anyone else learns of it.

Can your testimony create problems for you?

It can. A witness may be asked about his own role in the events, and an answer may reveal conduct that interests the parties. Testimony can conflict with what you said in another setting: a resignation letter, an unemployment claim, a statement to a regulator, or a lawsuit of your own. It can reveal that you took documents or are working in violation of a restrictive covenant. Witnesses are sometimes added to cases as parties after their depositions. Your current employer may also need to know that you will be absent, and it is better that the news comes from you. None of this means you should be anything less than truthful. It means you should know what you will be asked, and where your own exposure lies, before you are under oath.

What should you do in the first few days?

Write down when and how you were served. Do not ignore the subpoena, and do not discuss the substance of your testimony with either side's lawyers until you have considered your own position. Reread any severance, confidentiality, or separation agreement for notice and cooperation clauses; some require you to cooperate in litigation and also promise reimbursement for your time and expenses. Preserve everything. Consult a lawyer of your own, even if only once, before deciding whether to accept the company's offer. A subpoena that requires your attendance should come with the witness fee the law provides, small as it is. The date and place of a deposition can nearly always be adjusted by agreement.

Salomon Smith PLLC represents former employees, executives, and other witnesses subpoenaed in business disputes across South Florida. If a subpoena about a past employer has reached you, 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.