If you have been subpoenaed as a non-party witness for a deposition, hire your own attorney before you do anything else. A deposition subpoena forces you to show up, answer questions under oath, and sometimes hand over documents, but it does not come with anyone in the room whose job is to protect you. The lawyers for the parties are watching out for their clients. You need someone watching out for you.
Why You Need Your Own Lawyer
The examining attorney wants information that helps their case. The opposing party’s lawyer objects only when their own client’s interests are at stake. That leaves a gap around you, and three specific risks sit inside it.
The first is privilege. If a question touches on a communication protected by attorney-client privilege, spousal privilege, or another recognized protection, answering can destroy that protection permanently. Once you disclose privileged information in a deposition, the other side can use it. Your attorney’s job is to spot those questions before you answer and, when necessary, instruct you not to respond.
The second is scope. Examining lawyers sometimes push non-party witnesses into areas that have nothing to do with the case: personal finances, medical history, proprietary business details. Your lawyer can object and, if the questioning crosses the line, seek a protective order from the court limiting the deposition’s scope. Under the federal rules, the court can forbid inquiry into certain subjects, restrict the terms of the deposition, or shut it down entirely to protect a witness from oppression or undue burden.
The third is the risk of creating liability for yourself. A witness who rambles, speculates, or volunteers information beyond what was asked can generate sworn testimony that gets used against them in a separate proceeding later. Tight answers, delivered only to the question asked, are the fix.
The Limits Already Built Into a Subpoena
You cannot be dragged across the country for a deposition. Federal Rule 45 limits a subpoena’s reach: you can only be required to appear within 100 miles of where you live, work, or regularly do business in person.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 If the issuing party tries to schedule your deposition somewhere far outside that radius, your attorney can challenge the subpoena on geographic grounds alone. It is one of the first things a lawyer checks.
There is also a time cap. A deposition is limited to one day of seven hours unless the court orders otherwise or the parties agree to a different arrangement.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 If the examining attorney wastes time or drags things out, your lawyer can push back and hold them to the clock.
The party that sent you the subpoena is also required to take reasonable steps to avoid imposing undue burden or expense on you.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 If a document request demands thousands of pages that would take you weeks to compile, that is grounds to push back. Courts take this obligation seriously, particularly for non-parties who did not choose to be involved.
Getting Ready Before the Deposition
Reviewing and Challenging the Subpoena
Your attorney reads the subpoena and any attached document requests with a critical eye. A subpoena that demands “all documents related to” a broad topic, or one that requests privileged materials, is not automatically enforceable just because it arrived. If the requests are unreasonable or disproportionate, your lawyer can negotiate with the issuing party to narrow them or file a motion to quash the subpoena outright.3eCFR. 5 CFR 1201.82 – Motions to Quash Subpoenas
The Preparation Session
Once the subpoena itself is squared away, your attorney holds one or more preparation sessions. The goal is not to script your testimony. It is to walk you through the process, review the facts you are likely to be asked about, and help you organize your recollection so your answers are clear and consistent.
Good preparation also covers the mechanics. Listen to the entire question before responding. Pause briefly so your lawyer has time to object. Answer only what was asked. If you do not remember something, “I don’t recall” is a legitimate answer. Guessing creates sworn testimony that may not be accurate, and correcting it later is difficult and looks bad.
What Your Attorney Does in the Room
Objections and When You Can Stay Silent
Your attorney listens to every question. When a question is defective, the lawyer states an objection on the record. Under the federal rules, objections must be concise and non-argumentative; your lawyer cannot use them to coach you or signal how to answer.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 A typical objection sounds like “objection, form,” which flags problems such as vagueness, leading, or assumed facts.
Here is the part witnesses often misunderstand: in most cases, you still have to answer despite the objection. The objection is preserved for the record so a judge can rule on it later. The narrow exception is when your attorney instructs you not to answer, which is permitted only to preserve a privilege, to enforce a limitation already ordered by the court, or to set up a motion to terminate the deposition.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 Improperly telling a witness to stay silent can result in sanctions, so experienced attorneys use that tool sparingly.
Shutting Down an Abusive Deposition
If the examining attorney becomes hostile, repetitive, or clearly acts in bad faith, your lawyer can do more than object. Either the deponent or any party may move to terminate or limit the deposition when it is being conducted in a way that unreasonably harasses or oppresses the witness. If your attorney demands it, the deposition must be suspended while the court considers the motion.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 The court can then end the deposition or restrict its scope and manner under a protective order.4H2O. Rule 26(c) – Protective Orders
Courts can also sanction anyone who impedes, delays, or frustrates fair examination of a witness, including ordering that person to pay the other side’s reasonable expenses and attorney’s fees.2Legal Information Institute. Federal Rules of Civil Procedure Rule 30 The rule cuts both ways. It protects you from an abusive examiner, and it also means your lawyer cannot obstruct legitimate questioning.
What It Costs You
Fees You Are Owed
The party that subpoenas you is required to tender your witness fees and mileage at the time the subpoena is served.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 Under federal law, the statutory attendance fee is $40 per day, which also covers travel time to and from the deposition.5Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally Mileage is reimbursed at the rate set by the General Services Administration if you drive. The $40 fee will not come close to covering lost wages for most people, and it was never designed to.
Who Pays Your Lawyer
In most situations, you pay for your own attorney. There is no automatic right to have the issuing party cover your legal fees simply because you were subpoenaed. Federal courts do, however, have authority to protect non-party witnesses from significant expense resulting from compliance. When the burden of responding is high, particularly for extensive document production, courts apply a multi-factor test that can shift some or all costs to the party that issued the subpoena. Factors include whether you have any interest in the case’s outcome, how invasive the requests are, and whether the compliance costs are reasonable.
If your subpoena demands substantial time, document production, or travel, raise the cost issue early through your attorney. Courts are generally more sympathetic to non-parties than to litigants who chose to be in the fight.
After the Deposition
A court reporter produces a written transcript. If review is requested before the deposition ends, you get 30 days after being notified the transcript is available to read through it and note errors. Your attorney helps you compare the transcript against what you actually said, looking for transcription mistakes like misspelled names, garbled technical terms, or misheard words.
Corrections go on what is called an errata sheet. The original answer stays in the record alongside any correction, so the errata sheet is not a do-over. Substantive changes to testimony, as opposed to genuine transcription fixes, will be highlighted by opposing counsel at trial and can undermine your credibility. Stick to corrections that are legitimate and defensible.
Your obligations may not end when the reporter packs up. You or your attorney may have agreed on the record to produce documents or follow up on specific questions you could not answer in the moment. Your lawyer tracks those commitments and handles delivery without inadvertently turning over material that is privileged or outside the agreed scope.
What Happens if You Ignore the Subpoena
Skipping a deposition because it feels inconvenient is a serious mistake. When a non-party witness fails to appear after being properly served, the issuing party can file a motion to compel. If the court grants that motion, you may be ordered to pay the other side’s reasonable expenses for having to bring it, including their attorney’s fees.6Legal Information Institute. Federal Rules of Civil Procedure Rule 37
It gets worse from there. If a court orders you to appear and you still refuse, your failure can be treated as contempt of court, which carries the possibility of fines and jail time until you comply.6Legal Information Institute. Federal Rules of Civil Procedure Rule 37 Having an attorney early avoids this cascade. If the subpoena has genuine problems, your lawyer challenges it through proper channels rather than letting you ignore it and face the consequences.
What About Your Job?
Most states have laws protecting employees from being fired or retaliated against for obeying a court order or subpoena. Specifics vary by jurisdiction, so ask your attorney what applies in your state. If your employer pushes back on the time off or on the fact that you are testifying, having counsel makes it far easier to assert those rights before the situation escalates.