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Can I be sued for breach of contract for testifying in a civil case?

San Diego, CA |

When I left my previous job, I signed a confidentiality agreement in exchange for a payoff. I released them from any claims of harassment, wrongdoing, etc. However, another employee is suing this company for harassment, and has subpoenaed me for a deposition. I do not want to lie about the sexual harassment that I endured (and left the company because of), but I don't want to be sued by my former company for violating the terms of my release. What should I do?

Attorney Answers 3


  1. Review your confidentiality agreement. It shouodl contain an exemption for your INVOLUNTARY disclosures, such as when you're subpoenaed and compelled to appear somewhere and tell the truth.

    PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.


  2. A contract that precludes you from testify is in violation of the law. That provision of the contract or the entire contract could be considered void unless it includes a provision allowing you to testify if compelled to do so my a subpoena.

    Check your agreement and see if it has such a provision The provision may require you to give the company notice of your impending deposition. So, you will want to send them a letter notifying them of the date and expected subjects covered by the deposition. Fax it to them and send it certified mail if you are concerned about proof of sending the letter.

    You may want a lawyer to represent you at the deposition. If you had a lawyer negotiate your settlement, you may want that lawyer at the hearing since they are familiar with the situation and facts.

    Joshua Burt
    The Law Office of Joshua A. Burt
    BurtLegal.com

    The above answer should not be considered and does not constitute legal advice. You should not rely on any of this advice because each case is fact specific and could be subject to different local, state, and federal laws. No attorney-client relationship exists based on this response.


  3. I am quoting verbatim below from a California Court of Appeals case where there is a very relevant passage. Nonetheless, I cocur that it would be prudent to be represented by your own (new) attorney or the attorney who represented you previously, when you are deposed.
    >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
    Indeed, it would be contrary to public policy to permit a party to litigation to dissuade or otherwise influence the testimony of a percipient witness through a private agreement. (See Evid.Code, § 911 [unless otherwise provided by statute, no one has a privilege to refuse to be a witness; to refuse to disclose a matter or produce a writing, object, or other thing; or to insist that another person not be a witness, not disclose a matter, or not produce a writing, object, or other thing]; Pen.Code, § 136.1 [it is a crime to knowingly and maliciously prevent or dissuade a witness from attending or giving complete and truthful testimony in a judicial proceeding].)
    Similarly, the confidentiality clause of the settlement agreement in this case stated: “Harris represents and agrees that he will keep the terms of this Agreement completely confidential and that he will not hereafter disclose any information concerning this Agreement to anyone, including, but not limited to, any past, present or prospective employee, creditor or customer of [defendant], with the exception of [Harris's] accountant, fiance, or spouse or by a court of competent jurisdiction.”
    Because the confidentiality clause did not, and could not, preclude Harris from testifying as a percipient witness to events concerning plaintiff, the perceived conflict of interest {as to Harris's attorney representing the "new" plaintiff who is suing the same employer] is more apparent than real.
    Harris, a coworker with plaintiff, personally witnessed some of the facts and circumstances that gave rise to plaintiff's claim. Thus, Harris is perfectly free, without violating his settlement agreement, to appear in plaintiff's litigation and testify to the facts and circumstances he witnessed. Indeed, if subpoenaed, Harris is under an obligation to do so.

    See the case of McPhearson v. Michaels Co., Court of Appeal, Third District, California.March 4, 2002, 96 Cal.App.4th 843, 117 Cal.Rptr.2d 489 -- these numbers will mean something to your attorney when you retain them.

    I am glad you have the AVVO forum to get what you need...reassurance and the advice that you should hire a lawyer. You have too much at stake not to do so. Good luck on this!