sealed-document-gavelAttorneys sometimes forget that members of the general public may not share our familiarity with the legal system. The service of a subpoena duces tecum (bring it with you under penalty of punishment) on a “civilian” can generate numerous questions. The subpoena is an imposing, formal document that requires the recipient to produce files, records and documents at a place certain within a limited time period, and often demands that the recipient testifies at a deposition or a trial. There are penalties for failure to comply, and if the recipient is a non-lawyer professional, these issues can be compounded by time pressure, confidentiality/privilege and cost issues.

Some attorneys use the subpoenas to end-run limitations in the discovery process or objections to production raised by other parties to the litigation, often the client of the subpoenaed professional. The subpoenaed professional should be aware of certain basics and/or danger signals and seek legal counsel before responding and potentially violating a client’s rights, or incurring unnecessary burdens or expense.

Subpoenas are generally prepared by attorneys for litigants without court approval or review. They do not mean that a claim is being made against the recipient, although they should set off a minor alarm. The recipient should certainly consider the possibility of a claim and review the file for any potential criticism of the services performed before responding to a subpoena.

Other questions to consider include:

  • Who served the subpoena? Very often, the subpoena will not clearly state the name of the party seeking documents or testimony. It may be served by an attorney for a party involved in litigation with the professional’s client, sometimes when they are unable to get the documentation from the client/other party. The first step to take after receiving the subpoena is to determine if the client or the client’s counsel is aware of the subpoena and intends to object to the production of the professional’s files or his/her testimony. Such objections can be based on the confidentiality of the information. Imagine the problem if a client has spent resources to limit access by his adversary to certain information and the professional simply turns it over. The professional can avoid costs and expense by putting the onus on his/her client to object to an overbroad or burdensome subpoena.
  •  Is the subpoena valid? State courts have limited jurisdiction over the citizens of other states. It is surprising how many subpoenas have been served on professionals for litigation pending in different states. State courts require subpoenas from foreign jurisdictions (e.g., another state) to be filed in the courts of their states with a filing fee before a valid subpoena is issued from the recipient’s home state. Subpoenas that are procedurally defective are usually invalid and professionals do not have to respond to them. Federal courts have limited reach across state lines and are limited in how far they can force a witness to travel to appear for testimony.
  • Is the subpoena overbroad and burdensome? Most states allow attorneys to issue subpoenas without court approval or review, leaving the door open for potential abuse. The subpoena may be so broad in terms of (1) the time period (going back 10 years) for which records are sought or (2) so voluminous that it has no bearing on the litigation (search every hard drive in the office for any record that mentions a particular client). If the subpoena is overbroad, the recipient can call the attorney and try to negotiate a more reasonable response. The same holds true for short time windows provided for a response. Some states require a minimum time for notice, but even those time frames may be unrealistic. There is usually some leeway to negotiate more time to respond to an otherwise valid subpoena.

A subpoena does not mean the professional is being sued. It must, however, be treated seriously and any response must be made with knowledge of the issues. Very often, those issues can be resolved over the phone. If it is not clear how to respond, the professional’s or their client’s attorney should be involved to avoid future claims or the disruption of the professional’s business.