Home Management What Not to Do
When Responding to a Subpoena
What Not to Do When Responding to a Subpoena
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What Not to Do
When Responding to a Subpoena

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It’s not unlikely for a person to be served with a subpoena at some point in life. Subpoenas play a very important role in the U.S. litigation process. Normally, subpoenas are time-sensitive documents with the deadlines imposed by the courts. Before you comply with a subpoena, take the time out to think and decide exactly how and when it needs to be obeyed. A wrong response to a subpoena can end up having serious ramifications. Therefore, it’s necessary for one to know its implications. Here are a few handy tips to keep in mind when it comes to subpoenas:

Never Ignore

The first and foremost point is to never ignore a subpoena. A subpoena is a legal document issued by the court clerk in the name of the judge presiding over a case. It commands a person or entity to testify as a witness or to produce documents, and it needs to be treated with due importance. If you think the subpoena issued isn’t fair or unnecessary, you have the option to object to it. The objection can be on the grounds of procedural or substantive defects. However, the objections, if any, should be determined prior to responding to a subpoena to avoid any claim of waiver. The failure to comply with a subpoena on time, without any adequate excuse, may constitute contempt of court and can be subjected to a fine or even imprisonment.[1] However, the law does not specify what amounts to an “adequate excuse” for non-compliance, and the issue is generally determined by the facts of a particular case.

Never Forget Your Ground Work

As soon as you are served with a subpoena, try to learn as much as possible about the underlying lawsuit. Normally, a court cannot issue a valid subpoena unless there is a pending civil, criminal or administrative proceeding. A subpoena provides the name of the court or body issuing the subpoena, the names of the parties to the proceedings and the assigned docket number. If issued by an attorney, the attorney’s name and address will be provided in the subpoena. As most court dockets are available online, it is not difficult to obtain copies of the relevant pleadings. This will help you properly respond to the subpoena and to determine if any objections or privileges need be asserted in response. Learning more about the underlying lawsuit can also be achieved through contacting the attorney who issued the subpoena. However, it is not prudent to rely on one source alone. It’s not a bad idea to talk with the opposing party or that party’s counsel about the lawsuit before responding to a subpoena. Failure to make the required inquiries and do groundwork can lead to serious risks and dire consequences.

Never Destroy Responsive Documents

Generally, the recipient of a document subpoena must produce all responsive documents within its possession, custody or control, no matter where the documents are located.[2] The recipient should take steps to ensure that all responsive and potentially responsive documents are identified, collected and preserved. The recipient’s duty to preserve the documents is triggered regardless of whether h/she believes that the subpoena is objectionable. If the recipient fails in his/her duty, h/she can be held in contempt.

Never Be Late

A recipient objecting to a subpoena should file the written objection on time. Typically, in the absence of an agreement or court order to the contrary, all written objections should be served on the party or attorney designated in the subpoena before the earlier of the time specified for compliance or 14 days after the subpoena is served.[3] If the recipient sends the objections via mail, the objections are deemed served as soon as they are placed in the mailbox, even if the issuing party does not receive them until several days later.[4] However, in certain circumstances, the courts have the discretion to excuse objections not filed on time. Normally, once a written objection is served, it suspends the obligation to comply with it unless and until the court orders compliance, or an agreement is reached between the parties.

Also, to avoid the risk of being held in contempt, a recipient of a subpoena should arrive on time on the return date at the place where the deposition, hearing or trial is being held. If the testimony of a corporate officer or director is sought, it’s the duty of the company to ensure that appropriate witnesses appear on the return date. Failure to do so will be deemed a failure to respond by the company.

Conclusion

Unless there are serious objections, the prudent course would be to comply with a subpoena rather than disregard the subpoena. A wrong response to a subpoena can easily land you in serious trouble.

 

About the Author

This article was provided by LegalEase Solutions.  LegalEase is a specialized legal research and writing company serving attorneys, law firms and legal departments across the US and beyond since 2004. For more information, please feel free to contact us at 1(877) 712-8003 or email us.

Full disclosure, Legal Ink Magazine is an affiliate partner with LegalEase Solutions.

 


 

[1] Fed. R. Civ. P. 45 (g)

[2] Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 412 (3d Cir. Pa. 2004)

[3] Fed. R. Civ. P. 45 (d)(2)(B)

[4] Fed. R. Civ. P. 5 (b)(2)(C)

Sources: [For Reviewing Purposes only]

www.insidecounsel.com

www.joshmcguirelaw.com

www.weil.com

Priyanka Menon
Priyanka Menon

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