by Vince A. Toreno, Esq.

We are often asked whether a claims handler or employer representative is required to testify at a hearing or deposition after being served with a subpoena. The answer is: it depends. To be valid, the subpoena must be accompanied by a $25.00 per day witness fee and a roundtrip mileage fee at $0.45 per mile, if the witness resides outside the county where the testimony is to be given. However, if the witness resides in the same county where the testimony is to be given, the fees do not have to accompany the subpoena but are still required.

Assuming the subpoena is valid and accompanied by the required fees, the witness still is entitled to reasonable notice. Subpoenas are generally not enforceable if they are served less than 24 hours before the time the witness is commanded to appear. Although a subpoena may be technically valid if served a mere 24 hours prior to the hearing, the witness may have a strong argument that the notice is unreasonable and does not give sufficient time to make appropriate arrangements with work, child care, etc. A Motion to Quash may be filed requesting that the witness not have to appear to testify on this basis. The judge has discretion regarding whether to enforce a subpoena, and common sense dictates giving a witness a reasonable amount of notice of the hearing or deposition. Failure to do so may provide a basis to quash the subpoena.

We are sometimes asked whether we can oppose a subpoena on the basis that the testimony of the claims handler is simply not important or necessary. Certainly, in an insurance coverage case, the testimony of the claims handler or other insurance representative who may have information concerning the decision to deny coverage would be discoverable, and such depositions are taken as a matter of course. However, an argument can sometimes be made in a workers’ compensation case that the claim handler’s testimony would merely be duplicative of the information contained in the Board file and the subpoena is being used more for harassment than to obtain legitimate information relevant to the claim. If it appears the subpoena is merely being used to make the claims handler’s life more difficult, then defense counsel may file a Motion to Quash and seek a ruling from the judge on those grounds. However, it is important to remember that the discovery process in Georgia is quite broad, and the question that has to be answered is whether the testimony is calculated to lead to the discovery of admissible evidence. On this broad discovery standard, it will be difficult to convince the judge to quash a deposition subpoena.

Finally, it is important to remember that copies of the subpoena must be on file with the court at least six hours before the appearance of the witness at trial or hearing in order for the proceeding to be postponed if the witness fails to appear. If the subpoenas are not on file, then the judge will generally not grant a continuance and will require the party relying on the subpoenaed witnesses to go forward without the testimony.