In this episode, Jim Garrity addresses the question whether your deposition subpoena, which contains a specific date and time for appearance, in fact expires (requiring the witness to be re-subpoenaed) if the deposition is postponed to a future date. As always, he ends the episode with incredibly insightful practice tips, including sample language to include in your subpoenas to avoid this expiration-date argument. Check the show notes for the cases upon which this episode is based. And if you'd like to see the sample subpoena Jim Garrity uses that contains the language he recommends you add, email us at [email protected]. Put "Send me Sample Non-Expiring Depo Subpoena" - or something similar, so we'll know which bonus publication you're looking for - in the subject line.

SHOW NOTES:

Guild Associates, Inc. v. Bio-Energy (Washington) LLC, 2014 WL 2767605, No.: 2:13-CV-1041 (S. D. Ohio, Eastern Division June 18, 2014) (court rules, without analysis, that because the date for depositions had passed by the time of the court's ruling on a motion to quash deposition subpoenas and to have a protective order issued, the matter was moot)

HEI Resources East OMG Joint Venture v. Evans, 2009 WL 2601368, 09-CV-00028-MSK-DNV (D. Colorado August 20, 2009) (rejecting argument that because compliance date for document subpoena had passed 19 days before the court ruled on motion for protective order, the subpoena had "expired by its own terms” and there was no longer any binding basis for recipient bank to comply with subpoena that court had power to enforce; determining that "[T]he former argument is made without any citation to supporting authority and is patently without merit”)

Kitchen v. Croll, 2020 WL 1465978, No. 1:16-CV-190 (W.D. Mich. March 26, 2020) (order affirming magistrate's denial of prisoner’s motion to enforce records subpoenas, noting that the magistrate denied the motion to enforce the subpoena as moot because it expired months before the inmate filed his motion to compel; held, without analysis or citation to authority, that "[d]espite Kitchen’s arguments to the contrary, once the time for production passed, the subpoena no longer had any effect. By the time Kitchen filed his motion to enforce the subpoena several months later, the issue was moot, and thus this portion of the appeal will be denied")

Clark v. Hercules, Inc., 2021 WL 4318413, 2:13-cv-794-FtM-29-MRM (M.D. Fla. Jan. 19, 2021) (deposition subpoena June 27, 2019,for July 10, 2019 deposition, which was delayed due to the witness’ illness; motion to compel and enforce subpoena filed July 15, 2020; order enforcing subpoena issued January 19, 2021; held, "Plaintiff's argument that the subpoena is stale because the stated date has passed is meritless. While the subpoena set the deposition for July 10, 2019 this Court has found that a "[A] subpoena presents a continuing duty to appear and does not expire upon its stated date. As a result, despite the date passing, the Court finds that the Trust is still under a duty to appear”)

United States Equal Employment Opportunity Commission v. Hospman LLC, No. 2:15 – CV – 419 – FTM – 29CM, 2016 WL 5942386 (M. D. Florida October 13, 2016) (subpoena presents a continuing duty to appear and does not expire upon its stated date; hence, if the party cancels and reschedules a deposition after issuing a subpoena with a specific date, a witness is still under a continuing duty to appear for a rescheduled deposition)

Shulton v. Optel Corp., 126 F.R.D. 80 (S.D. Fla. Feb. 17, 1989) (subpoena represents continuing duty to appear and does not expire upon its stated date, citing cases from various states and federal jurisdictions)

Functional Pathways of Tennessee, LLC v. Wilson Senior Care, Inc., 2010 WL 11474102, No. 3:10-CV-409 (E.D. Tenn. Nov. 10, 2010) (November 10, 2010 quashing deposition subpoena without citing statutory or decisional authority, saying that because authority deposition was set for November 5, 2010, “[t]his date had now expired and, because "the subpoena is now incorrect in its date, the subpoena is hereby quashed")

Williams & Cochrane, LLP v. Quechan Tribe, etc., 2020 WL 2747116, No. 17-cv-1436-GPC (S.D. Cal. May 26, 2020) (rejecting, without deciding, argument that "deposition subpoena is insufficient because the original deposition notices expired and were not reissued; Court noted that "Plaintiff has not put forward any authority for its position that the subpoena has expired…”)

Wright v. Warden, 2019 WL 643486, No. CV154006830S (Superior Ct. Conn. Jan. 18, 2019) (determining that subpoena for appearance in court was no longer valid because of state statute that provides the subpoena is valid for 60 days)

Rosario v. Starbucks Corporation, 2018 WL 333196, No. 2:16-cv-01951 RAJ (W.D. Wash. January 8, 2018) (in response to defense argument that the plaintiff's notice of subpoena set a date certain for deposition, and that any other date would be unenforceable because the subpoena had expired, court said thar "This argument is unpersuasive; [the defendant] offers no authority in support of its contention that Plaintiff is confined to the deposition date set forth in its Notice of Subpoena…”)

FRCP 45(c) (governing service of subpoenas on nonparties)

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