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Deposition: Can it be required from a former employee of a company?

New York, NY |

Opposing counsel is requesting a deposition from a former employee.
Former employee was working for the company when the business dispute occurred however never had any direct communication with the opposing company (side).
I think they are just requesting information from anyone just to drive up legal bills to get us to settle.
Is there a way to only have the employees who actually dealt with the other company be deposed?

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Attorney answers 5


As a general principle of law, a party to litigation can subpoena for deposition anyone subject to the jurisdiction of the court, if the party thinks the person may have evidence relevant to the litigation. Whether the opponent thinks the person subpoenaed to give a deposition in fact possesses relevant evidence is immaterial.

Not legal advice as I don't practice law in New York. It's just my two cents on the facts you describe in light of general principles of law. If you need legal advice, please consult a lawyer who holds New York licensure. That's not me.


Two thoughts.

Business disputes can lead to much unnecessary pre-trial discovery. Sometimes a discovery notice needs to be limited and the New York court rules provide a mechanism. There is no reason why opposing counsel should be permitted to simply waste time and resources.

First, your company's attorney should pick up the telephone and call opposing counsel, suggesting a more appropriate witness likely to yield discoverable evidence. Usually this type of discovery dispute can (and should) be worked out consensually. Perhaps there is a legitimate reason why the witness is being called to testify.

Second, if there is absolutely no value to be gained by deposing the witness and the other side refuses to consent to withdraw the deposition notice, then your attorney can make a motion for a protective order to limit discovery.

These are fairly routine motions in the New York State courts. Most often, however, the matter is addressed by consensual stipulation and never reaches the motion stage . Some judges are more proactive and will assist the parties and their counsel in working through these types of disputes in an informal conference setting, typically in chambers.

A motion for a protective order is your last resort.

I hope this insight is helpful to you.

This answer is provided for information purposes only. It should not be relied upon as legal advice which can only be offered to clients in an office consultation setting when all the facts and circumstances can be fully considered and reviewed.


If your company is incorporated then it must be represented by an attorney in this lawsuit. You should ask your attorney this question as they should be in the best position to advise you.

I am not your attorney and any posts/messages or responses to posts/messages can not establish an attorney-client relationship. You should not rely upon free legal advice and I disclaim any liability for the results if you do.


Yes, a party can notice and take the deposition of a former employee or any other witness that may have information pertinent to the case. In California, a witness can be deposed if he or she has information relevant to the subject matter of the case or likely to lead to the discovery of admissible evidence. This is abroad standard. New York likely has a similar standard. Sometimes depositions are taken of witnesses who have very little information. Also, there may be a disagreement between the parties as to what information is relevant or not. In exceptional circumstances a party may be able to move for a protective order, but it is not that unusal for a another party to take a deposition of a witness who essentially states on the record, "I don't know anything." If that is the situation, the deposition will be short.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.


Any employee of a party company (plaintiff or defendant) can be compelled to testify at a deposition by service of a notice on his/her employer. However, a former employee must be served with a subpoena to compel appearance at a deposition. If the employee objects -- feels that s/he is being harassed, or is otherwise improper, the former employee can make a motion in court to quash the subpoena. This can be expensive, though. It would mean taking on the lawyers who represent the opposing side (the party that served the subpoena); you might need to hire your own attorney.

In some situations the employer's attorney can represent the ex-employee, but that doesn't always work. Some judges have held that this constitutes a conflict of interest.

I am an attorney admitted solely in NY. None of the answers I submit on this forum constitutes legal advice, even to questioners in NY, and no attorney-client relationship is hereby created.

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