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image size compressor onlinel has just served a Rule 45 deposition subpoena on a third party witness. Should you also serve a subpoena? What if you want to depose her for several hours, but you are not sure if opposing counsel will finish with enough time for your examination under the seven hour limit? What if you want to ask the witness about matters that have nothing to do with noticing counsel’s examination?

Luckily there is no need to serve a cross-subpoena. Rule 30 governs depositions for parties and non-parties. Rule 30 allows cross examination at depositions as if it were at trial; and courts interpreting this provision (in light of the broad scope of discovery) hold that a party may ask questions outside the scope of direct examination even if they did not notice the deposition. However, the 1 deposition/7-hour time limit is fixed, unless there is a party stipulation or court order. If opposing counsel will not stipulate, you will have to move the Court for leave.

While not required, you may want to serve subpoenas (and pay witness fees) to (i) have control in case defendants withdraw their subpoena; (ii) to specify additional documents for production; and (iii) to avoid disputes.It is helpful to keep in mind that Rule 45 requires payment of fees at the time of service. In the case below, court issued sanctions against an attorney who moved to compel an invalid deposition subpoena because fees were tendered when he noticed the deposition, not at the time of service. This case is good to keep in mind when serving or responding to Rule 45 subpoenas.