What to do if you are served with a subpoena.
In a lawsuit, the way information is produced or documents
received from the other party is through the discovery process under the rules
of Civil Procedure. The parties in a lawsuit have to answer to a judge if they
fail to obey these procedures. However, in most cases, a third party, who is
not either the plaintiff or defendant in the lawsuit, has some important
information related to the case. Since those parties are not in the lawsuit,
the judge has no inherent power, or jurisdiction over him to force him to
comply with even reasonable requests for information. The way the parties get
information, documents or testimony from someone not involved is through a
subpoena.
Rule 45 of the North Carolina Rules of Civil Procedure
governs the use of subpoenas by parties. A subpoena can be issued by the clerk
of court, or by a judge or magistrate. Even the attorney for the party
demanding the information, documents or testimony, as an officer of the court,
can issue a subpoena. So there is no hearing or discussion as to what it is
that the party wants, or why they should have it, before a subpoena is issued.
A subpoena must then be served on the person. It can be served in person by the
sheriff, a deputy, coroner, or any non-party who is over 18. The subpoena can
also be served by certified mail, return receipt requested. Finally, a sheriff
can serve a subpoena for the attendance of a witness by telephone. Therefore,
trying to get out of testifying or producing documents by avoiding a subpoena
is usually just a stalling tactic. Chances are, eventually you’ll get served.
So you’ve gotten a subpoena from the sheriff or mail or
another proper method. What do you do? First carefully read the subpoena. It is
required to provide you with information regarding the lawsuit, including the
title of the action, the name of the court, the name of the issuing person, and
the name of the party who is asking for compliance with the subpoena. Note that
there must be a lawsuit before a subpoena can be issued. If there is no
lawsuit, even if there is a claim or controversy, a party cannot have a
subpoena issued. The subpoena should also have date, time and location for the
person to show up and testify and/or produce documents that the subpoena lists.
Second, once you understand what the subpoena is demanding,
you can make a decision on how to respond. If the subpoena is for your
appearance at a deposition and or to produce and permit copying of
documents you can serve (in this case U.S. mail or hand-delivery) to the other
party or attorney objections to the subpoena. The party issuing the subpoena
then has to schedule a hearing before a judge, with notice to you, regarding
your objections and to compel you to obey the subpoena. Alternatively for
depositions and/or production of documents and for trial attendance, you can
move to quash the subpoena and go straight to a hearing before the court.
Either way, if you have issues with the subpoena, you can be heard before a
judge. You must make your objections or motion to quash 10 days after you were
served or before the date of compliance if you were served with less than 10
days notice.
However, you are not allowed to object to a subpoena for any
reason. The allowable objections are 1) there is not reasonable time for
compliance, 2) there is privileged or protected information that is being
requested, 3) subjects you to undue burden or expense, 4) it is unreasonable or
oppressive or 5) the procedure was not followed (issuance and service).
A reasonable time for compliance is different depending on
what is being asked. 10 days may be more than enough notice to testify at a
deposition, but would not be reasonable if it asks for years and reams of
documents. “Privileged information” means a recognized privilege of confidentiality
in North Carolina, such as communications between a person and their lawyer (attorney/client
privilege). The court will also consider trade secrets or other types of
confidential information in balance with the purpose for the production and
whether or not the information needed can be gained by other means. The court
can modify a subpoena and issue limitations or protective orders on documents
provided, to address the concerns of a person regarding confidential
information. Similarly, a court can address things such as scheduling,
locations, travel expenses, or a multitude of other concerns that a person may
have that would fall under one of the 5 objections. Only seldom does a court
come across an objection that cannot be alleviated to address the person’s
legitimate concerns while still providing needed information or testimony to
the issuing person.
If your only objections are time and place and the amount of
documents you have to bring, the best practice would be to call the attorney
who issued the subpoena. Usually they will work with you to get your testimony
or documents with the least amount of trouble to you that they can. If the subpoena
is for trial testimony, it will usually require you to be present in court on
the first day of trial. However, most attorneys if you agree to cooperate, will
try and fit you into the trial as best they can and will have you on telephone
standby for your attendance. If there are trade secrets or privilege or if the
documents themselves may hurt you in some way, you should consult with an
attorney.
What you should not do is fail to respond. A judge can order
you to produce and then fine you for contempt of court if you continue to fail
to respond. I’ve had a judge in a trial send the deputy to a subpoenaed
witness’s house and bring him to the courtroom. Continuing refusal to obey as
subpoena will eventually subject you to monetary sanctions from the court and
even jail time.
–Bradley A. Coxe
is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who
specializes in Personal Injury, Medical Malpractice, Homeowner’s Associations,
Contract and Real Estate disputes and all forms of Civil Litigation.
Please contact him at (910) 772-1678.