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What to Do If You Can't Depose Your Opponent

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By William Vogeler, Esq. on April 03, 2018 6:57 AM

With few exceptions, everybody is subject to being deposed.

Even the President of the United States is not above lawful discovery, as President Trump may learn. If not, then President Nixon is an example.

But when an elusive deponent avoids subpoena, or resigns from office as the case may be, what to do? A few presidential pointers may help.

Push Hard

In United States v. Nixon, the president resigned after the U.S. Supreme Court said he had to comply with a subpoena. He claimed executive privilege, but it didn't work.

Everybody knows that. But the lesson for litigators, when facing an uncooperative party in discovery, is to keeping pushing until it hurts.

File a motion to compel. If that doesn't work, the next stop is a motion for sanctions. Even contempt may be appropriate.

Circumlocate

You can't always get what you want, Mick Jagger said, but that was just a song. Try "circumlocate" instead. It's just a word, but if you try sometimes you just might find you get what you need.

That's what Robert Mueller is doing in the Russia case. He has rounded up witnesses all around the president, and may not need to depose him to get what he needs.

Stormy Daniels' lawyer filed a motion to depose Trump, but a judge has denied that request. The judge said it was premature because of a potential arbitration motion.

If that happens, Michael Avenatti said he will file again.

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