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Compelling a Witness’s Appearance at an Oral Deposition and Rule 199.3’s substitute notice process

On Behalf of | Nov 2, 2022 | Firm News

Under Rule 199.3 of the Texas Rules of Civil Procedure, a subpoena is generally required to compel a witness to attend an oral deposition. However, when a “witness is a party or is retained by, employed by, or otherwise subject to the control of a party…service of the notice of oral deposition upon the party’s attorney has the same effect as a subpoena served on the witness.”

In In re Texan Millworth, the Texas Supreme Court had the opportunity to evaluate the issue of whether a witness was employed by or subject to the control of a party such that service of a deposition notice on the party’s attorney would act as a subpoena under Rule 199.3 in the context of a fatal industrial accident.

The wrongful death beneficiaries of Jay Adashera, who was an employee of a wholesale granite purveyor, brought suit for negligence, gross negligence, and wrongful death after Adashera died when two 400-pound granite slabs fell off a contractor’s truck. Initially, Adashera’s family sued the granite company and the owner of the truck from which the granite fell – Lazaro Cabrera. Eventually, Adashera’s family took a default judgment against Cabrera and added claims against Texan Millwork, Inc. – the company that hired Cabrera to fabricate the granite slabs into countertops. Adashera’s family made multiple attempts to serve Cabrera with a notice of oral deposition. When none of these attempts were successful, Adashera’s family filed a motion to compel Texan Millwork to produce Cabrera for deposition and asserted that Texan Millwork employed and maintained control over Cabrera. Texan Millwork responded with evidence that it had never retained, employed, or controlled Cabrera. The trial court granted the motion, and the court of appeals denied Texan Millwork’s petition for mandamus relief.

In a per curiam opinion issued on October 1, 2021, the Texas Supreme Court clarified that Rule 199.3 requires contemporaneous employment, retention, or control for service on a party’s attorney to have the same effect as a subpoena served on the witness. Specifically, the Court concluded, “To construe Rule 199.3 otherwise would lead to the untenable result that a party could be compelled—on pain of sanctions—to produce a witness over which it possesses no power or authority merely because it may have held, at some point in the past, a right of control… In contrast, requiring present control, consistent with Rule 199.3’s language, makes the rule’s substitute process complementary to the coercive effect of a subpoena.”

Ultimately, the Court determined that the trial court had abused its discretion because (1) evidence prior employment or control are not sufficient to invoke Rule 199.3’s substitute notice process and (2) the record was “devoid of evidence that Texan Millwork employed or controlled Cabrera when the deposition notice was served or any time thereafter.” Further, the Court determined that mandamus relief was warranted because the trial court’s order compelling Texan Millwork to produce Cabrera for deposition was beyond what the rules allow, and “parties lack an adequate appellate remedy from orders compelling discovery beyond what the rules allow.”

Take aways:

    • Whether a deposition notice served on a party’s attorney has the same effect as a subpoena on the witness depends on evidence of the party’s present ability to control the witness.
    • Mandamus relief is appropriate when a trial court orders a party to produce a witness for deposition if there is no evidence that the party retained, employed, or controlled that witness at the time production is sought.


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