3. (§9.7) Trial Subpoenas as Alternatives to Depositions
Depositions are great for finding out what a party or witness has to say. They are also relatively expensive, and in taking them, counsel always runs the risk of preserving negative testimony. The best alternative to taking a deposition is picking up the phone. Unless the witness is known to be represented by counsel—either individually or as an agent of a represented corporation—there is no prohibition to simply calling and talking to a witness. Rule 4–4.2.
That does not mean that there will be no consequences to calling a witness outside of formal discovery. A particularly unfriendly witness may seek out the opposing party to offer help in response to counsel’s call when the witness would not have done so without it. Also, a healthcare provider who voluntarily talks to an attorney who does not represent the provider’s patient runs the risk of being sued for inappropriate disclosure. State ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. banc 2010).
While many attorneys are reluctant to call witnesses formerly employed by a corporate party, the 2007 revisions to comment [7] of Rule 4–4.2 indicate that communication with former corporate employees may be done without permission of corporate counsel. Thus, unless there is a need to preserve testimony, counsel can contact an ex-employee informally as part of counsel’s investigation. In so doing, counsel must not “use methods of obtaining evidence that violate the legal rights of the organization.” See Rule 4–4.2, cmt. 7; Rule 4–4.4(a).
A witness is, of course, not required to answer counsel’s call or counsel’s questions. Fortunately, taking a recalcitrant witness’s deposition is not counsel’s only option. Instead, the Rules allow...
