Workers obligated to cooperate with employer
Published 04/17/01

While at work, an employee may witness an incident that is relevant in a civil or criminal litigation. Employees should therefore understand some of the ground rules as to what can be required of them as a witness in a trial or deposition.

While the employee may have an obligation to cooperate with his current employer and governmental authorities in an investigation as to pending litigation, the employee does not generally have such an obligation, absent being served a subpoena, to others. The employee's time spent in cooperating in the investigation is considered work, which is to be compensated for by the employer, and is limited to providing complete and truthful answers.

If the employer were to ask the employee to falsify his testimony or to destroy evidence, the employer would be committing a crime and if the employee were to participate in that crime, he should expect to be held criminally liable.

As to requests by others for the employee to provide testimony, that generally can only be compelled through a valid subpoena. For example, if the employee was served a subpoena in New Hampshire for a Massachusetts state court personal injury action without an order from a New Hampshire state court, that subpoena should be held invalid. A federal court subpoena can generally be valid up to 100 miles from the courthouse or the place of deposition. By way of example, a trial subpoena issued in a case from the United States District Court for the Eastern District of Massachusetts in Boston to a witness located in Nashua, New Hampshire would generally be valid unlike a Massachusetts state court subpoena which, as stated above, would be invalid.

The subpoena only gives the right for the subpoenaing counsel to speak to the employee in that scheduled deposition or trial and does not require the employee to give a statement or provide documents to that counsel outside of the specific requirements of the subpoena. To the extent the employee would prefer not to be dragged into the case as an involuntary witness, she should note that it may be considered risky for the subpoenaing attorney to put that employee on the witness stand without knowing ahead of time what would she would say.

Generally, it is prudent to discuss with your attorney any subpoena you receive as a witness in a case to help you to determine your best course of action. 

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.