A community association is required to keep and maintain certain records for the association. As a result, associations are faced with being ordered to turn over records in all types of lawsuits. What do you do if you are served with a subpoena will depend on the type of subpoena.
Pursuant to Florida Rules of Civil Procedure 1.310, a party to any litigation may issue a subpoena and require the production of records. This is typically called a subpoena duces tecum. This record production may require testimony, or it may simply be a requirement to produce the records. An association must carefully review the subpoena to determine what the subpoena requires. Subpoenas should include language if testimony is not required. The subpoena will also contain a list of documents that the association must bring to the deposition. The subpoena may also contain subject areas that will be covered at the deposition if testimony is required. While a subpoena duces tecum may seem simple to respond to, it is strongly recommended to consult legal counsel to confirm you understand the subpoena and what response is required.
If the subpoena is for taking testimony, the association should select a representative to attend the deposition. The representative should be the person with the most knowledge of the records the subpoena requires the association to take to the deposition. The association should only produce the documents requested in the subpoena and should not volunteer additional documents. Once the documents are gathered the person selected to attend the deposition should review the subject areas to be covered and prepare.
The person attending the deposition is typically referred to as the deponent. The deponent should review the documents and become familiar with the content. The deponent should also be familiar with how the association maintains, stores, and creates the record. The deponent should arrive early at the deposition with a photo ID and the documents. At the deposition, the deponent should always remain calm, relaxed, and polite.
The deposition is not personal. The deponent should always answer the question with a simple direct response. Generally, the deponent should limit the response to the question asked and not volunteer any additional information even if the deponent feels the additional information is important. Also, do not make unnecessary small talk with the parties. The deponent is there to fulfill a job and not to become friends. The deponent should take their time and make sure they understand the question prior to answering.
If the deponent does not understand the question they should not try to guess. Simply let the attorney know that you do not understand the question and ask for clarification. The deponent is permitted to say they do not remember or does not know. The last thing the deponent wants to do is make up an answer or guess. If the deponent does not know the answer they should not attempt to guess. Make sure to tell the truth and simply answer the question asked.
As the deponent, you should always make sure that you speak clearly and make eye contact with the party asking the questions. There will be a court reporter recording the deposition so the deponent should remain conscious of that at all times and make sure not speak too fast and wait until the question is completed. The deponent should avoid making hand gestures or nodding their head.
Whenever an attorney objects the deponent should not continue with the answer until instructed to do so. If the attorneys do not direct the deponent to answer then the deponent should ask whether they should answer the question. Lastly, most of the time the deponent discusses the deposition with their counsel. As the deponent, make sure that you do not disclose anything that you discussed with your attorney.
Best practice is to have counsel present at the deposition and review the documents being produced prior to the deposition. This will ensure that the you have fully complied with the subpoena and have not produced any documents that may be protected from disclosure by a privilege.