By Alyssa Gautieri
You’re on the board of your condominium and a unit owner has filed a civil lawsuit against the association. The attorney representing the association is working with the board in handling its defense. But, now you’ve received a deposition subpoena. What should you do?
Whether you’re on the board of your community association, or the manager of one, there is a possibility that you’ll be called for a deposition in an instance like this. According to John Randy Sawyer, attorney and shareholder with Stark & Stark —a law firm based in Lawrenceville, New Jersey, a deposition is a question and answer session that is under oath as sworn testimony. “Which means the testimony is the equivalent to being in open court in front of a judge and jury,” he said. The court reporter will record everything said in the deposition.
The adversary’s attorney is entitled to take depositions of fact witnesses — which could include board members or property managers. If a board member or property manager receives a deposition subpoena, Sawyer suggests immediately notifying the attorney handling the case for the association. “The attorney will inform you of the process and whether or not you need to produce any documents when you appear for the deposition,” he explained.
When it comes to the deposition, “the attorneys involved in the case will be present and each one has the right to ask the witnesses questions,” Sawyer said. “Lastly, the parties in the case have the right to be present.”
If a board member or manager is being deposed and cannot recall a specific fact or event, Sawyer advises his clients to say “I do not recall at this time.” “A good attorney representing a witness will advise you to qualify your lack of recollection with the phrase ‘at this time’ because you may be shown documentation at a later point after the deposition that would spark your memory,” he explained.
If an unclear question is asked, Sawyer noted that a person being deposed can ask the attorney to rephrase the question.
When it comes to responding to each question, Sawyer explained that a person being deposed must answer most questions. The only questions that a witness under oath can refuse to answer are ones that implicate some kind of legally recognized privilege, such as attorney-client privilege. “Most other questions have to be answered, even though they may seem completely irrelevant to the case,” he said.
According to Sawyer, the other exception would be if an attorney is being overtly rude or aggressive. In such a case, the attorney defending your deposition can stop the proceeding and contact the court to seek a protective order.
While the attorney is present to protect you, there can be no discussion or interaction between the person being deposed and the attorney once a deposition begins. According to Sawyer, “this makes preparation of the witness prior to the deposition extremely important.”
A deposition will last as long as necessary for the attorneys conducting the deposition to ask all the questions, which may take all day or multiple days.
If the board member or manager being deposed demands an additional attorney, the association or management company may be asked to cover the expenses in certain circumstances. “This may occur if a testimony could possibly expose the board member to personal liability,” Stark explained.
“Bylaws always contain indemnification clauses requiring the association to defend and indemnify board members from legal costs associated with their involvement in litigation arising from their service as a board member,” added Sawyer, who noted that indemnification is typically met by having the attorney representing the association advise and defend the board member.
Generally speaking, Sawyer said a manager or board member cannot refuse to be deposed. “When the association is a party, it has the obligation to comply with discovery demands — which includes producing its board members as witnesses,” he explained. “If one of the board members refuses to be deposed, then the opposing party may file a motion with the court to dismiss the association’s case for failure to comply with discovery.”
“If the association is the defendant, then the plaintiff could move to bar the association from producing any witnesses to defend itself at trial for failing to produce the board member in a deposition,” he added. “At a minimum, the court would bar the board member who refused to be deposed from testifying at trial, which could result in damaging the association’s defenses.”
A similar analysis applies to property managers. “If a property manager refuses to testify in a deposition, the opposing party could file a motion to dismiss the association’s case or bar it from producing witnesses,” Sawyer said.
The recorded deposition will serve as evidence in court, whether it’s used to support or oppose a motion. According to Sawyer, the witness who was deposed may or may not end up being a witness at trial. “Under certain circumstances, deposition testimony can be read to a jury during a trial in lieu of calling the witness back to testify live.”
While this process may seem complicated, Sawyer reminded us to “relax and trust your attorney’s advice.”