Your witness has just settled into her seat to give her corporate deposition. She’s tired from a long flight to Miami, having come from out of town. She was up late reviewing company papers. She’s trying to keep all the details straight, but she’s ready to give a strong deposition. Then, a process server walks in and hands her a summons. The witness has just learned she is being sued individually. Now she has to immediately give testimony for her company. Few things are as disruptive and unsettling at a deposition than serving an individual summons for claims against the witness personally.

While unnerving a witness in this way may be enticing to some lawyers, it may also be creating months of delay and significant expenditure of fees and costs. This often means an unhappy client. Given that the witness may be immune from the service of process, all the extra delay and cost may not be worth the flare of an in-deposition service.

This article discusses some witness immunity at corporate depositions. If you have any questions regarding service of a summons at corporate deposition, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com.

Under well-settled Florida law, a corporate officer has immunity from service of process while attending corporate deposition, even where the officer is a non-served individual defendant in the same case. Murphy & Jordan, 278 So. 2d at 297 (Fla. 3d DCA 1973) (holding nonresident defendants being deposed as corporate officers of defendant corporation and not as individuals, were immune from process while in Florida for deposition purposes, even in the same case); West Stuart Acreage, Inc. v. Hannett, 427 So. 2d 323, 323–24 (Fla. 4th DCA 1983) (because president in his individual capacity had never been served process either as separate party or as witness, trial court erred in requiring him to present himself for taking of his deposition within 15 days, upon penalty of default judgment against corporation); Ingenieria Y Exportacion De Tecnologia S.L. v. Freytech, Inc., 2016WL8257335 at *1 (Fla. 3d DCA 2016) (strict construction/compliance with statutes on service of process required); see also Francini v. Int’l Marble Trades, Inc., 546 So. 2d 777, 778–79 (Fla. 3d DCA 1989) (holding nonresident corporate officer attending deposition as witness in case against corporation was immune from service of process for suit against officers); Higgins v. Garcia, 522 So. 2d 95, 96 (Fla. 3d DCA 1988) (holding where nonresident corporate officer was deposed as corporate rep and not as an individual, officer was immune from process while attending deposition); Stokes v. Bell, 441 So. 2d 146, 147 (Fla. 1983) (providing for the nonresident witness immunity rule); Lee v. Stevens of Fla., Inc., 578 So. 2d 867, 868 (Fla. 2d DCA 1991) (holding nonresident witness immunity rule applied to Canadian resident, who was served with process while leaving arbitration proceeding).

The Florida Supreme Court has held that valid policy reasons support this immunity rule, including due administration of justice and avoidance of a chilling effect on deposition attendance:

[Case law] points up another reason for the rule’s existence, i.e. the fear that lack of immunity would have a chilling effect on a person’s right of access to the courts and to defend himself [in deposition] . . . These policy reasons—the due administration of justice and avoiding a chilling effect—are as valid today as [in 1937].

Stokes at 147. Thus, the appellate courts have applied immunity to individual non-resident corporate officers who were sitting for corporate deposition in the same case in which they were named as individual defendants. Murphy & Jordan, 278 So. 2d at 297 (Fla. 3d DCA 1973). Distinguish these circumstances from those where an officer is not named as an individual defendant or where the officer has already been served with process. See, e.g., Plantation-Simon Inc. v. Bahloul, 596 So. 2d 1159, 1162 (Fla. 4th DCA 1992) (allowing officer deposition to proceed where officer was not named as an individual defendant, and thus there was no fear of service of process or an immunity issue).

Thus, where deponents are non-resident officers of a company in litigation, and a plaintiff has named them as individual defendants on separate causes of action or separate contracts, these officers are likely immune from individual process at their corporate officer depositions. On fear of service of process, the officer defendants will likely seek a protective order confirming their immunity from process while attending corporate depositions. This should lead to a hearing to discuss the plaintiff’s misuse of corporate officer discovery to obtain process on foreign defendants. The trial court’s failure to enter a protective order or quash service of process at a corporate deposition will likely lead to a protracted appeal.

In sum, serving a summons at a corporate deposition can add months of delays and significant attorney’s fees to a case. Often, all of this rigmarole is not worth the extra time, money, and judicial resources expended. It may simply be better to serve process through normal conduits (you can always get the deponent’s home address while at deposition).

If you have any questions regarding service of a summons at corporate deposition, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com.