Editor’s note: Cheryl Marteney and Donalt Eglington are members of the Ward & Smith law firm. Daniels, Daniels & Verdonik, whose members have written TechLaw for WRAL Local Tech Wire, merged with that firm last week.
RALEIGH, N.C. – You’re in your office one morning, focused on a critical issue for the next stage of your business, and suddenly you notice a deputy sheriff has arrived who wants to speak with you. Puzzled and a bit frightened, you begrudgingly leave what you are doing to greet the deputy. He asks you to confirm your identity. As soon as you do, he hands you a piece of paper that says "Subpoena" at the top. After you breathe a sigh of relief that the paper he gave you doesn’t say your company has been sued, you ask him what this is all about. He simply tells you the document is a subpoena he is required to deliver to you, and that you need to contact a lawyer if you have any questions.
What Is a Subpoena?
A civil subpoena (and there are other kinds) is a written command issued with the full power of an order from a court to appear at a certain time and place to give testimony or to produce certain specified documents. Subpoenas of any kind are serious business which should be treated with appropriate urgency and respect.
When the command includes the production of documents or things, the proper name is a "subpoena duces tecum." Thus, a civil subpoena can command the recipient (or in the case of a company, then a knowledgeable person selected by the company) to testify at a deposition, hearing, or trial; to produce documents at a certain time and place; or to do both. Subpoenas are being used more and more in civil litigation to obtain testimony and/or documentation from individuals and businesses who are strangers to the underlying lawsuits.
Why Is a Civil Subpoena Used?
Generally, civil subpoenas are used for two purposes. First, when civil lawsuits involve people other than the parties to the lawsuit, a subpoena may be used to order them to be present at a place and time to give testimony in a deposition, hearing, or trial. Second, in some civil lawsuits, the parties need access to certain documents or information that are in the possession, custody, or control of a person or entity that is not a party to the lawsuit. Consider, for example, a dispute alleging fraud through misappropriation of funds. In such a case the bank records of the person accused of the misappropriation may be relevant to show how and where the funds went or how the funds were misappropriated. Because the bank is not a party to the lawsuit, a subpoena would provide the means by which the parties to the suit can obtain access to the bank’s records. In this regard, it is important to understand that the rules relating to subpoenas allow a subpoena to be used as a means by which to obtain documents not only for depositions, hearings, and trials, but also simply to obtain documents in the context of discovery.
Who Can Issue a Civil Subpoena?
It is not only judges and magistrates who can issue subpoenas. Under North Carolina law, attorneys licensed and admitted to practice in this state are permitted to issue civil subpoenas. In those cases where a party to a lawsuit is not represented by an attorney, then subpoenas for that party must be signed by a judge, magistrate, or clerk of superior court.
How Should a Subpoena Be Served?
Service is a legal word used to describe the required form of delivery. Civil subpoenas, whether for testimony, to produce documents, or both, must be served on the person or entity named either through hand-delivery by a sheriff’s deputy, a coroner, or any person who is not a party to the lawsuit and who is not less than 18 years of age, or by registered or certified mail, return receipt requested. Service of a subpoena commanding a person to appear to testify at a hearing or trial also may be made by telephone communication by a sheriff or the sheriff’s designee who is not less than 18 years of age and is not a party to the lawsuit, or by a coroner.
What Should You do if You Receive a Civil Subpoena?
Don’t panic! There is a very orderly process for responding. The first and most important thing to do is to understand that a person receiving a civil subpoena usually has an obligation imposed by law to comply with the subpoena or, alternatively, to obtain some relief from the obligation of compliance from a court or from the person who issued the subpoena. Ignoring the subpoena is rarely, if ever, appropriate. Complying with it, however, is often easier said than done. Following the orderly process helps to guide this. Here are some important milestones that chart the way.
First, upon receipt of a civil subpoena, take note of the date, time, and place for compliance. Also, read any description of documents required to be produced by the subpoena. If you have an unavoidable conflict or, for some good reason, cannot comply, you should contact quickly either the party or the attorney who issued the subpoena to determine whether there is some way to resolve the problem, or you should seek the advice of an attorney.
Next, if the subpoena requires you to produce documents, you should make sure that you understand the requests, which generally are worded very broadly. If the requests are clear and narrow and there is no reason to be concerned about producing the documents (such as disclosure violates a confidentiality agreement to which your company is a party), compliance may be relatively easy. When producing documents, you may produce them either as they are kept in the ordinary course of your business or affairs or by organizing and labeling them to correspond to the requests stated in the subpoena. If, however, the requests are not clear, are so broad that compliance would require the production of voluminous documents, compliance within the time required would be very burdensome or costly, or you are asked to produce sensitive documents, you again should contact the party or attorney who issued the subpoena to obtain clarification or some relief, or you should seek the advice of an attorney. Often, the party or attorney will be able to explain to you what information he is seeking, which may limit the documentation or information you will actually need to produce.
Third, you should understand that subpoenas are not without limits. The rules governing subpoenas protect people from subpoenas which impose undue burden or expense, which do not provide a reasonable time for compliance, which seek privileged documents, which are oppressive, or which have not been issued or served in accordance with proper procedure. If you receive a subpoena and feel that any of these circumstances apply, you should seek the advice of an attorney as soon as possible. If the party or attorney issuing the subpoena is unwilling to resolve any differences over these issues, your attorney will be able to seek relief from a court by filing a motion to “quash” the subpoena. Also, the rules governing civil subpoenas include special protections relating to document requests. These rules provide that within ten days after service of the subpoena, or before the time specified for compliance if the time is less than ten days, you may serve written objection upon the party or attorney who issued the subpoena. The written objection may be based on any of the reasons set out above. Upon delivery of the written objection upon the party or attorney who issued the subpoena, you are relieved of the obligation to produce the documents until the party or attorney applies to the court and obtains an order that overrides the objection.
Fourth, if the subpoena requires you to appear and testify at a hearing or trial, you should contact the person who issued the subpoena to determine exactly when you need to be present. In many cases, the hearing or trial referenced in the subpoena is scheduled to last more than one day. In such a situation, the party or attorney who issued the subpoena may allow you to be on telephone standby and appear to testify only if and when called.
Finally, any of the parties to the lawsuit also may object to the subpoena. For example, the person accused of fraud in the example mentioned above may claim that his bank records contain privileged and confidential information. Thus, it usually is prudent not to produce documents in advance of the date and time required by the subpoena. By then, you should know whether a court has entered an order relieving you of the obligation to comply in response to a request from some other party.
What Happens if you Fail to Comply with a Civil Subpoena?
If you fail, without adequate cause, to obey a subpoena, you may be found to be in contempt of court. The punishment for contempt may include imprisonment or other sanctions. As noted in the beginning of this article, subpoenas are serious matters.
Summary
Subpoenas are being used more and more in civil litigation to obtain testimony and/or documentation from individuals and businesses who are strangers to the underlying lawsuits. Don’t panic if you get one. Remember that it is part of an orderly process and the requests made in it can be managed with proper attention.
Ms. Marteney’s practice experience encompasses various areas of litigation before both federal and state courts, litigation of business disputes, contracts, construction, banking, and personal injury cases. Comments or questions can be sent to cam@wardandsmith.com
Mr. Eglinton’s practice focuses primarily in the area of commercial litigation, including. This including disputes involving patent, trademark and copyright infringement, trade secrets, covenants not to compete, franchise and license agreements, and warranties. Comments or questions can be sent to dje@wardandsmith.com.
