Subpoena question

[Curiosity]

Good evening.

Back in the day, I was a home inspector in the great state of Oregon.

A client walked from an inspection I did due to a list of defects. (4-5 years ago). After my clients walked, someone else came in, hired their own inspector, and purchased this house.

Fast forward to this week.

I have had 2 separate plaintiffs attorneys call and leave numerous messages stating that they need me to testify in court regarding the place I inspected. I just got a voicemail stating that since I haven't returned their calls, they'll be sending me a subpoena compelling me to show up and testify.

The lawyers state that the 2nd inspection report was inadequate. How they got mine to compare to the 2nd guys, I don't know.

They state that the court date is scheduled for this coming week, which doesn't give me much time to prepare. I'm under the impression (likely false), that they missed their window of opportunity to serve me within x amount of time. What's the minimum amount of time required?

If I am required to appear, what's the best way to let them all know what I think about getting drug into something that I was never compensated for, four years later? They're using my "copyrighted" report without my permission, and I'm feeling "hostile" about the entire situation.

[John Dirks Jr]

They can't force you to testify. If you get a subpoena, you'll have to show up. When they put you on the stand just say you wrote the report. Other than that, there's nothing else to contribute since you are not an expert whiteness.

[Tom Raymond]

You need to consult a lawyer.

Or, call both attorneys and inform them that you were not a party to the transaction in this case and that your copyright is being violated and that you are considering your own action.

Really, call your lawyer.

[kurt]

Copyright violated by a subpoena? Umm......no.

It's just a subpoena. Sometimes you get them and you go in and testify. It's called the justice system. In America. There's nothing to get hostile about. It happens. Try to get out of it. If you can't, it's part of being in the business.

[David Meiland]

They can compel you via subpoena to testify as a witness of fact, meaning you will confirm that the report is yours and that it says what it says. You don't need to prepare, just walk in and answer yes/no questions. If they hand you something while you're on the stand, you look at it and answer more questions. Seems very likely that at least one side will want you to provide opinions, in which case they need to hire you as an expert, and you don't have to do that... but of course you could if they pay your price.

Calling you in to testify in court instead of deposing you first is a little odd.

How they got your report and how they're using it would have to be the basis for a separate legal action. Seems plain that your client gave the homeowner at the time a copy of your report, and it found its way forward to the new owner. As a contractor I have dealt with many owners and buyers who had copies of reports that were prepared for earlier folks who are no longer part of the picture. People hand them around.

[Jim Katen]

The copyright issue is irrelevant here. Forget about it.

You probably should have returned the lawyers' phone calls right away, if only to have some control over your relationship with them. You might have convinced them to hire you for litigation support.

They want you to be a witness of fact, not an expert. They'd be foolish to call you as an expert because you're no longer in the business. If you haven't been inspecting since "back in the day," you just wouldn't make a credible expert and the defense attorney would go after you pretty hard. I agree that the lack of deposition is strange.

Just show up and provide factual answers. If they ask you an "opinion" question, turn to the judge and ask whether or not you should answer. I'm guessing that the other inspector's defense will be based on the notion that he adhered to the state standards of practice while you exceeded them. Expect questions about the ways in which your report exceeded the standards; most of those questions will be of the "opinion" nature - watch out there. If you're lucky, the defendant will have hired his own expert to demonstrate his position.

They should pay for your parking, but forget about any other compensation.

Definitely review the standards and your report the night before. I was once involved in one of these where the thing that was alleged to be my report wasn't. It had been fabricated by the defendant from bits & pieces of my report combined with bits & pieces of another inspector's report. That defendant, a real estate agent, actually ended up doing time in prison, which, I'm ashamed to say, I found to be quite gratifying.

[Bill Kibbel]

If you returned their calls, I think they would be looking at you as an expert witness.

It can result in a nice size check. We can share an expert witness agreement example.

[Jim Baird]

...I did not see in the OP where your report was issued. If the client walked before you finished how did anyone get wind of your presence or report?

[Tom Raymond]

Back in the day, I was a home inspector in the great state of Oregon.

A client walked from an inspection I did due to a list of defects. (4-5 years ago). After my clients walked, someone else came in, hired their own inspector, and purchased this house.

Not his client, not his inspection. How is he a witness to anything?

[Jim Katen]

Back in the day, I was a home inspector in the great state of Oregon.

A client walked from an inspection I did due to a list of defects. (4-5 years ago). After my clients walked, someone else came in, hired their own inspector, and purchased this house.

Not his client, not his inspection. How is he a witness to anything?

He's a witness to the condition of the home at the time in question.

[mjr6550]

Yea, I have had the same reaction in the past. Now I understand that you cannot fight the legal system. If they do not want to pay you, you can be very unhelpful. Four years is a long time to remember something, but my memory is better when I'm paid to think about something.

As for Copyright violation, you cannot win that one. From what I understand, the only way you are entitled to compensation is if you had registered the report with the Copyright office.

[Brandon Whitmore]

I was under the impression that they had to subpoena an individual appx. 10 days in advance so he had time to prepare, schedule time off, etc.

Can they make him show up if the subpoena shows up the day prior to trial?

[Jim Katen]

. . . As for Copyright violation, you cannot win that one. From what I understand, the only way you are entitled to compensation is if you had registered the report with the Copyright office.

My lawyer assures me that's not at all true. Registering is *not* necessary. The issue here is that the report is being introduced as evidence in a trial. That's (generally) considered fair use - the court doesn't need to obtain permission to copy the report.

[Jim Katen]

Here's an interesting case on the matter of copyright and fair use, for those who are interested:

http://www.creativity-law.com/wp-conten ... asier_.pdf

[ghentjr]

Here's an interesting case on the matter of copyright and fair use, for those who are interested:

http://www.creativity-law.com/wp-conten ... asier_.pdf

Good article.

[kurt]

I continue to be amazed that anyone gives a shit about a copyright on their home inspection report.

[David Meiland]

It doesn't seem like copyright is a valid concern, but rather some way of preventing a client from passing the report to anyone else. I've been in many situations where a buyer hired a HI to inspect a house, gave a copy of the report to the seller as part of the negotiations, and then the seller gave it to the next buyer, who then didn't hire a HI because the report was fairly recent (and, in our market, there aren't more than a few HIs anyway).

[kurt]

Reports get passed around all the time and we can't do anything about it. I have a clause in my agreement restricting it to only my client being able to rely on the information....a feeble attempt at trying to keep the lid on....but people pass them around anyway. Good luck trying to stop it.

[mjr6550]

. . . As for Copyright violation, you cannot win that one. From what I understand, the only way you are entitled to compensation is if you had registered the report with the Copyright office.

My lawyer assures me that's not at all true. Registering is *not* necessary. The issue here is that the report is being introduced as evidence in a trial. That's (generally) considered fair use - the court doesn't need to obtain permission to copy the report.

My post regarding registering a copyright was poorly worded. I realize that copyright has nothing to do with use in a court case or compensation for testifying. I was trying to say that if you want to sue someone for copyright infringement, then I believe that you cannot obtain compensation if you have not registered the document.