'Oh No!

I've Been Served'

By Charles R. Foster, Esq., Member ASHRAE, and Paul J. Halyard, P.E., Fellow/Life Member ASHRAE
Y
ou can imagine my surprise when ~ y secretary told me t l ~ a t a unifom1ed .sheriff was asking ~ o see me in the
lobby. As I walked out to meet hun, I thought of the Iudden cameras 111 the new traffic hghts and began
fonnulating my defense to what I assumed was a ticket for a haffic violation. You can appreciate my amaze-
ment when the sheriff handed me two subpoenas. The first directed me to appear for a deposition. The second required
me to produce documents. Both subpoenas referenced a
court case rega rding a project with which J 'd been in-
directly involved.
As soon as I was served, I gathered and reviewed the firm's
proj ect fil es, which showed that we had been engaged by the
local agent of an out-of-state lender to review Application
and Certificate for Payment forms and recommend
disbursement of moni es from a pre-approved schedule of
values prepared by the project contractor and approved by
the owner, lender, and architect. The files also showed that
the contractor was being sued by the owner; that the contrac-
tor was no longer on the job; and that the job was only
60% complete even though construction had been underway
for well over a year. This was highly unusual for such a
small project.
I immediately telephoned our client's local agent to tell
him that I had been served and asked him to contact the
lender to determine how the client wished to proceed. The
local agent called me back to tell me that the lender was not
getting involved in the dispute, that it had no intention of
hiring a local attorney to represent me, and that it would not
expend any money in connection with the matter. (Easy for
them to say .. . . they were not subj ect to the subpoenas.)
I recommended that the lender become involved because the
liti gation would take time, exposing installed mate rial s
to the e lements, whic h could lead to the premature
degradation of non-weather-protected materials and possible
latent indoor air quality problems from mold and mildew.
My arguments fell on deaf ears.
Since I assumed that the attorney who had subpoenaed
me would be asking questions about the professional
judgments that I'd made in connection with the project,
I told him that I felt the deposition should take place only
if he agreed to pay me for my time. He refused to do so,
claiming that he was calling me to test ify as a fact witness
and not as an expert. The issue never came to a head because
he s ubsequently withdrew the subpoena requiring
me to appear.
Since l was concerned about the document production
subpoena and the possibility that my firm and I would be
50
drawn into the litigation, I decided that it would be prudent
to hire an attorney and did so at the firm' s expense. Our
lawyer contacted counsel for the owner and the contractor
and arranged for the party requesting the documents to have
a copy service come to our oftlce, pick up, copy and return
the documents, and pay for all of the reproduction
costs. More importantly, our attorney negotiated an
agreement that nothing contained in our files could be
used as the basis for a lawsuit against me or the
firm, ensuring that we would not be drawn into the
li tigation.
Take Away Points
If you are served with a subpoena to testify and/or to
produce documents, gather and review al l of your files.
Make an inventory of the documents you found. Do
not change, amend or destroy any of the subpoenaed
documents.
Call your client and your insurance carrier immediately.
Some insurance carriers offer free pre-claim assistance.
If your client and/or your insurance catTier refuse to hire
an attorney to represent you, engage one yourself.
Ask for expert witness fees if you will be examined
about matters involving your professional judgment or
opini ons.
Make sure that the party serving the subpoena assumes
the burden of having the documents copied and pays
for all of the reproduction costs. (If the documents are
sensitive, or if there is concern that documents may be
lost or stolen, insist that the documents be picked up,
copied and returned by an independent copy service.)
Try to negotiate an agreement that exculpates or re-
leases you from Ji ability.e
The information contained in this article represents the
opinion of the author(s). It is not intended to, and does not,
constitute legal advice, nor does it represent the opinion of
ASH RAE or any ofits bodies.
May 2002IASHRAE Journal