Respond To a Subpoena

A subpoena is a legal document that orders the recipient (whether a person or an organization) to provide sworn testimony at a predetermined time and place pertaining to a legal investigation or proceeding.[1] There are also other types of subpoenas, which may command you to supply materials in your possession (subpoena duces tecum) or appear to provide a deposition in the discovery phase of a trial (deposition subpoena).[1] Regardless of the type of subpoena you receive, knowing how to respond to the document is the first step in properly complying with the order.

Steps

Receiving the Subpoena

  1. Determine if what you received is actually a subpoena. A subpoena will have the word ‘Subpoena’ near the top of the document and the full name of the court that issued the document will appear in the letterhead.[1] A subpoena will also state that you are “commanded to appear” (or similar language) to a specific location at a specific date and time, and it will list the materials you must produce in the case of a subpoena duces tecum.[1]
  2. Accept the subpoena. Subpoenas usually arrive via registered mail or a legal delivery service, which means that they require a signature. You don’t stand to gain anything by refusing to accept the subpoena (refusing to sign for the document). Accepting the subpoena is not the same as agreeing to comply to the subpoena, and you will still have options to object to the subpoena even after you sign for it.[1] All your signature does is confirm that you have received the order.
  3. Determine who subpoenaed you. A judge, a court clerk, a private lawyer, or a government lawyer (such as a district attorney) can send you a subpoena.[1] Most often, it will be a private lawyer in connection with a pending lawsuit to which you (or your organization) are not a plaintiff or defendant (a “party”) at the time.
    • The person who subpoenaed you will also sign the document and provide contact information. If you still aren’t entirely sure if what you have received is a subpoena, you can call and ask the person who issued the order.[1]
    • Only non-parties in ongoing litigation get subpoenas.[2] Therefore, you cannot object to the subpoena on the grounds that you are not a party to the lawsuit. The fact you are not a part of the lawsuit (but nonetheless might have information that is relevant to the case) is the reason you are being subpoenaed.
  4. Determine what you must produce. Read the subpoena closely to determine exactly what it has ordered you to do. You may have to:[1]
    • Appear to provide testimony either at a trial or as a deposition
    • Produce physical or electronic documents as part of an investigation or a trial
    • A combination of both
    • If you are a healthcare professional being ordered to produce records for a client, then look into your state’s laws concerning disclosure of the information. Even in situations where you must produce the information, you must typically inform the client in writing either to allow the client to agree to the disclosure or provide adequate time for the client to object on their own behalf.[3]
  5. Contact your lawyer. Often subpoenaed non-parties can turn into targets of a criminal investigation or can be joined as parties to the lawsuit. Thus, it is important to know what the case is about and how it might affect your rights and interests. You may want to contact a lawyer to untangle the full implications of the subpoena and possibly protect yourself in the suit.
    • You and/or your lawyer should also review the actual suit in addition to the subpoena to determine the scope of the case.
    • Many court records are now kept electronically and can be easily found by searching on the court website for the listed party names. Alternatively, you should be able to get copies of such documents from the party who subpoenaed you.
  6. Do not destroy evidence. Failure to comply with the subpoena without a reasonable objection that the court has honored can lead to a contempt of court charge, which can carry a hefty fine or even imprisonment.[2] Destroying the documents sought by the court is a surefire way to be found in contempt.
    • Where potential evidence is not in your personal control (for instance, your company was subpoenaed, and there are multiple people who may have relevant documents), you should instantly issue a directive to all such custodians of documents to preserve those document and emails. Don’t forget to notify the IT department who might have backups of files and emails that will need to be preserved.

Objecting to a Subpoena

  1. Talk to a Lawyer. Even if you think you have nothing to hide, it is always a good idea to ensure that your own interests are protected. Especially if you are subpoenaed for a deposition, your testimony will be under oath and the lawyer asking you questions may lead you into saying things in ways that might make you vulnerable in a civil lawsuit or worse.
  2. Make objections. If you have a reason not to produce specific documents or provide deposition testimony (for example, if the information sought is confidential), you can answer with a list of written objections or can file your own “Motion to Quash.” This motion is basically a request to the court to change or terminate the subpoena with an explanation of why you feel you shouldn’t have to comply. There can be several reasons to challenge a subpoena:[4]
    • Privileged or confidential information - Some information is entitled to a measure of protection under the law, including trade secrets; communications with a spouse, lawyer, accountant, or clergy person; and other categories.
    • Fifth Amendment privilege - If providing the documents could incriminate you, then the Fifth Amendment protects you from being forced to testify against yourself if such testimony could subject you to criminal liability.
    • Procedural flaws - The way in which you must be served the subpoena depends on the jurisdiction. Follow up with your attorney to determine if you were properly served the subpoena
    • Non-custody - If you can’t produce the material(s) the court has requested because they are no longer in your possession. Note that you’ll likely have to document proof that the material(s) are no longer in your custody.
    • Scope - A court may limit the amount of documents you must provide, grant you extra time to gather the materials, or even order the other party to pay for your copying costs.
  3. Have your lawyer submit a Motion to Quash. If one or more of the possible objections to the subpoena apply to your situation, then you should have you attorney submit a Motion to Quash the order.[4] Note that just because you file the motion, the judge doesn’t necessarily have to grant it.
    • The motion may also be to simply modify the subpoena to narrow the scope of the documents, give you more time to collect the materials you have been ordered to produce, etc.[4]

Complying with the Subpoena

  1. Reschedule if necessary. If the date or time is inconvenient, you can request to reschedule by contacting the person who issued the subpoena. While you may be able to reschedule a deposition, you most likely will not be able to reschedule actual testimony as its bound to the court date. Further, if you have to travel a long distance (usually, over 100 miles), your travel costs will be covered. [1]
    • If the person who issued the subpoena grants a change of schedule, request it in writing to protect yourself.
  2. Show up. For a subpoena that requires you to provide testimony or a deposition, you simply need to ensure that you show up at the assigned time and place listed in the subpoena. Depending on your situation and the questions you can anticipate being asked, you may want to seek the counsel of your attorney. This will help you determine the best way to answer each question legally without finding yourself in contempt of court.
    • If the subpoena has been issued to a company, the company must designate an individual who is most knowledgeable about the topics stated in the subpoena. If no single person has all of the information requested in the subpoena, the company may still designate a single individual who would then educate himself/herself about the topics which he/she doesn’t know.
  3. Produce everything in your control. Complying with the subpoena duces tecum means you must produce every document requested that is under your control. If any of the documents aren’t in your possession, then you or your attorney must submit (and have granted) a motion to modify the scope of the subpoena before the set date.
  4. Provide copies of the requested documents. If an original of a documents must be presented, then the subpoena will say so. If the subpoena lacks this detail, then you should provide photocopies of any documents instead of the original. If the subpoena is for an electronically stored information, then you must present it in its ordinarily maintained form or a form that is still usable to the court.[5]
  5. Only give out one copy. You do not need to make copies of all the documents for every party in the lawsuit. One copy will suffice unless otherwise stated.
  6. Prove you produced the documents. After you deliver the documents, write a Declaration of Service or a Declaration of Compliance of Subpoena stating who you delivered the documents to; what you delivered; and how, when, and where you delivered them.[6] You keep this document until someone claims you didn’t comply with the subpoena.

Sources and Citations

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 http://www.dmlp.org/legal-guide/responding-subpoenas
  2. ↑ 2.0 2.1 https://www.utcourts.gov/resources/rules/urcp/urcp045.html
  3. ↑ http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/courtorders.html
  4. ↑ 4.0 4.1 4.2 http://www.hg.org/article.asp?id=34948
  5. ↑ http://www.law.cornell.edu/rules/frcp/rule_45
  6. ↑ https://www.utcourts.gov/resources/forms/subpoena/docs/04_Declaration_of_Compliance_with_Subpoena.pdf

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