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Thomas Swartz
Thomas Swartz, Attorney
Category: Legal
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Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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My question is I have been subpoenaed by the plaintiff in

Resolved Question:

My question is: I have been subpoenaed by the plaintiff in a civil case in Texas, U. S. District Court. I gave a oral deposition for the Plantiff and defendants last November. Is it possible to be excused from this trail due to illness?
Submitted: 7 years ago.
Category: Legal
Expert:  Thomas Swartz replied 7 years ago.

Possibly. To do so you would have to make a motion pursuant to Federal Rules of Civil Procedure Rule 45(c)(3) - Quashing or Modifying a Subpoena (scroll down).

Read the entire Rule, but under subdivision (3)(A)(iv) the court can quash or modify the subpoena if it "subjects a person to undue burden." So, in your motion papers to the court you would have to argue that because of your illness requiring you attendance at trial would place an undue burden on you. You would have to submit proof of your illness, and why it would prohibit you from giving testimony. Whether the court will grant the motion will of course depend on the severity of your illness, how critical your testimony is to the case etc. The court either quash the subpoena entirely and possibly have the plaintiff just use your deposition testimony. Or it could modify the subpoena by delaying your appearance until you are able to appear, or possibly make some other ruling to accommodate your illness.

It is probably best to hire an attorney who is familiar with practice in the Federal Texas District Court to make the motion for you.

Good luck.


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