Subpoenas are commonly used in civil litigation to obtain evidence from individuals, corporations and other entities that are not parties to a lawsuit. The recipient of a subpoena may respond in several ways. Depending on the circumstances, the recipient may:
- Comply with the subpoena and provide the requested testimony and/or documents.
- Serve written objections to a document subpoena.
- Move to quash or modify the subpoena.
- Move for a protective order.
- Contact the party who served the subpoena in an attempt to informally resolve the issue.
- Contact an adverse party to the litigation who did not serve the subpoena in an attempt to have that party exercise its rights against the party who issued it.
1. Decide on potential objections
Once the recipient has been served with a subpoena or knows that it will be served, he or she has a duty to identify and preserve responsive documents and other information. The recipient’s duty to preserve is triggered regardless of whether they believe that the subpoena is objectionable; ultimately, it is the court that determines the subpoena’s validity. The first step, prior to responding, is to determine what objections exist, if any. In general, objections to subpoenas vary from procedural flaws to further substantive ones, such as privilege. Whether one or all of these objections may be raised should be determined prior to responding in order to avoid any claim of waiver. A general list of objectionable procedural defects include the following:
- A subpoena, in order to be valid, must be served in person by an adult who is a non-party and not by any other form of mail, fax, or substitute service.
- The tendering of witness and mileage fees for a subpoena seeking the testimony of a witness is generally mandatory except for subpoenas seeking documents only.
- Generally, a subpoena cannot be used to obtain information that could have been produced during discovery.
- A civil subpoena may be quashed if it requires a witness to travel or produce documents more than 100 miles from that person’s residence, place of employment, or business.
- A subpoena that fails to allow reasonable time for compliance may be quashed.
The general substantive objections to a subpoena are as follows:
- A subpoena can be valid only if the information required is pertinent to the subject matter and reasonably calculated to lead to the discovery of admissible evidence.
- A subpoena can be quashed or modified if compliance will cause an undue burden or expense on the witness.
- Generally, a subpoena can only seek the production of documents that are under the possession, custody or control of the witness alone.
- Unless there is a substantial need for the information that cannot otherwise be met without undue hardship, a subpoena seeking trade secrets or confidential information may be quashed.
- There are many other privileges apart from attorney-related privileges that may render a subpoena objectionable. Some jurisdictions have adopted accountant-client privilege or privilege preventing the disclosure of healthcare provider records. However, not all jurisdictions have adopted these privileges and many federal courts have refused to recognize them.
After considering the potential objections to a subpoena, the next step is the presentation of written objections. These objections must be served on the party or attorney designated in the subpoena before the earlier of the return date or 14 days after the subpoena is served (FRCP Rule 45(c)(2) (B)). This is important to remember because it is different than serving written objections to requests for documents served under FRCP Rule 34, which are generally due 30 days from service. The failure to timely comply with a subpoena without adequate excuse constitutes contempt of court (FRCP Rule 45(e)). Additionally, all objections may be deemed waived if the recipient fails to serve its objections on time. That said, courts sometimes excuse untimely objections in certain circumstances, such as where the recipient and the issuing party attempted to negotiate an extension of time in which to comply, or where the subpoena is overbroad on its face, imposes a significant burden on a non-party witness, or sets a return date that does not allow for sufficient time to comply with it.
The inevitable final step is to abide by those aspects that are not objectionable. A person subjected to a subpoena is obliged to obey it— failure to do so without sufficient excuse could result in a finding of contempt and the imposition of fines and costs. Also, the court may issue a bench warrant in order to compel compliance. Knowing when (and how) to object and when to comply is the key to effectively and advantageously responding to a subpoena. Make it your new mantra: object, present, and comply!
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