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My questions are regarding taking deposition of a non-party in a family law case.

Zephyrhills, FL |
Filed under: Child custody

I am pro se. My ex is behind in child support and decided to sue me for majority time-sharing of our now 16 year old son. His attorney has filed a Notice of Taking Deposition for a non-party (my current husband).
1. What is the proper procedure for opposing counsel to serve a subpoena for deposition on a non-party?
2. Is there a specific statute or civil law code that addresses this?
3. What is the proper procedure that I would need to follow in order take the deposition of a non-party in my case? I thought I read in a previous response to a question that I would have to pay the deponent if he/she was a non-party.
4. Am I allowed to ask questions of my current husband at his deposition that was requested by opposing counsel?

Attorney Answers 6

Posted

A motion to quash the depo subpena has to be filed to try to stop the depo. There are statutes and case law that need to cited in such a motion. A depo of a non party witness obligates the person to pay the witness a per diem and mileage. You can ask questions of a witness at depo noticed by the other side.
You should consult an atty as this is probably beyond your ability. There are objections based upon marital privileges that could be asserted to at least some questions asked of your spouse.

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Posted

The way to stop the deposition is to file and serve a motion to quash the deposition subpena. There are specific statutes, case law and court rules in Florida that apply to this issue and must be followed. In order to quash the deposition, you would need to satisfy the judge that there is no legitimate purpose for the deposition and it is meant just to harass, annoy and drive up the costs of litigation. As a non party witness your current husband is entitled to a witness fee and round trip mileage at the beginning of the deposition. You could ask questions of your current husband at the deposition, but unlike other third party witnesses, you can discuss any issue with him after the deposition and I think you would just be giving the other more issues to question your husband on during the deposition. Save the questions for your husband for trial or if necessary a declaration in support of whatever motion you need to file or oppose later on?
Make sure you have an attorney at the deposition to protect your rights, privileges and make necesary objections to improper questions.

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

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2 comments

Robert M Chambers

Robert M Chambers

Posted

The Florida Rules provide that if the discovery sought is objectionable failure to attend is not excusable unless the party failing to act has applied to the Court for a protective order under the provisions of rule 1.280(c).

Robert M Chambers

Robert M Chambers

Posted

Additionally privileges must be asserted or they are waived. All objections are preserved except form of the question. This rarely arises and an explanation of it is far beyond the scope of your question.

Posted

The procedure is found in Fla. Rule of Civil Procedure 1.280, 1.300, 1.310 and 1.330. I agree with my collegue that you should not be doing this on your own.

You would be able ask questions of your husand on cross examination. But why would you want to? A deposition is a discovery device and the other attorney is using it to get info from your husband. If you follow up with a cross examination you will be helping him with his info gathering as well as giving him another shot at redirect!

I have a list of "rules" that I give my client to help them pepare for depositions. If you will email me I will send it to you (no charge!) for your husand's review.

Good luck.

PS - Read the rules I cited above.

This answer was provided as a courtesy to you and no attempt was made to establish any type of attorney/client relationship.

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Posted

1. Notice of taking Deposition => Issue Subpoena => Have it served by sheriff or process server, include $5/day + $.06 mile round trip. Deposition has to serve a useful purpose, not just to harass.
2. Yes. Look at index to the the Florida Rules of Civil Procedure and Florida Statutes and you will find all the rules and statutes governing them.
3. Same as #1
4. Yes. But, why would you? Are you having a spat with him and want to drag him over the coals? He can errata his answers anyway when a transcript is produced.

This is a summary based on incomplete facts. You should not rely on it as legal advise. No attorney-client relationship is intended to be formed. You may call me 772-562-4570; email me vblawyer@bellsouth.net, or visit my website http://www.millerlawoffices.us

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Posted

Rules 1.280, 1.300, 1.310 and 1.330 apply. You have to clear the date and time with opposing counsel, then find a court reporter then subpoena the person to be deposed for the deposition. Contact my office for free consultation. 727-446-7659

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Posted

The rules for this are in Chapter 12. of the family law rules which simply refers you to Chapter 1 of the Civil Rules for discovery.
A non-party must be personally served by a Sheriff or qualified process server.
The Civil Rules of Procedure which control are, as stated, ultimately in Chapter One.
You wouldn't really want to take the deposition of your current husband since you know what he is going to say and don't really need to question him. The only time you would do that is if you wanted to use the deposition in lieu of live testimony. If he can testify then it would benefit you if he was there in Court with you.
If you want to depose a non party then you must serve them and give proper notice to the other side including scheduling same with the other side.

This is a technical thing to do and a lawyer would really help here.

No answer posted is meant to be conclusive or to insinuate any outcome of any case. It is a generalized miniture answer of a greater process. Should you need more extensive responses to your specific queston, contact me for free consultation today! Skype, phone, or in person! 904-466-0446

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