Subpoena Compliance: When Does It Breach Confidentiality Laws?

A subpoena is a court-ordered request for information, issued by a court to compel an individual to provide testimony or produce documents. Subpoenas can be issued in criminal cases, in private (civil) lawsuits, and by government agencies conducting their own investigations and proceedings. They are very specific to a situation and can be issued to third parties who are not directly involved in the case. While subpoenas are powerful tools, they are not without limitations. For example, a subpoena cannot force a violation of the 5th Amendment right against self-incrimination. However, it's important to note that this right applies specifically to criminal cases, and in civil cases, individuals can be compelled to testify or produce documents that may leave them open to civil liability.

Subpoena vs Summons

A subpoena is a formal written order issued by a court that requires an individual to appear before a court or other legal proceedings (such as a Congressional hearing) to provide testimony or produce documentation. It is a command of the attorney who completes the form, and defiance of a subpoena is an act in defiance of a court order, exposing the defiant witness to contempt sanctions. A subpoena is very specific to a situation and can be used in both criminal and civil cases. It can be given to anyone that might have helpful information about the case.

A deposition subpoena is a court order requiring a person who is a third party to a lawsuit to provide copies of records and/or appear at a deposition to answer questions asked by one of the parties involved in the lawsuit. It is also used during the discovery phase of a case, allowing attorneys to gather evidence to support their client's position.

A summons, on the other hand, is an official notice or invitation to come to court. It is a document that commences a legal proceeding and is typically issued at the initiation of a lawsuit to inform defendants of the claims against them. It is used as a communication tool to provide them with an opportunity to respond. It is not an order, so the recipient does not have to do what it says. However, failure to respond to a summons can result in a default judgment against the defendant and lead to financial or other penalties. A summons can be served by sheriffs, certified mail, or special process servers.

In summary, a subpoena is a court order that mandates an individual's participation in a legal case by providing testimony or evidence, while a summons is an official notice of a lawsuit that invites the recipient to come to court and respond to the claims against them.

Subpoena duces tecum

A subpoena is a legal document issued by a court to compel an individual to provide testimony or produce documents. It is a formal written order that requires a person to appear before a court or other legal proceedings, such as a Congressional hearing. Most people who are subject to a subpoena are not being asked to offer testimony that could implicate them in a crime. They simply have evidence relevant to a case.

A subpoena duces tecum, or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. The phrase "subpoena duces tecum" is a Latin expression that literally means "under [threat of] penalty [or punishment], you will bring [it] with you". The word "sub" means "under", "poena" means "penalty", "duces" means "you will lead, guide, pull, bring", and "tecum" means "with you".

In some jurisdictions, a subpoena duces tecum can also be issued by legislative bodies such as county boards of supervisors. This type of subpoena is similar to the subpoena ad testificandum, which is a writ summoning a witness to testify orally. A deposition subpoena duces tecum is a court order requiring a person who is a third party to a lawsuit to provide copies of records and/or appear at a deposition to answer questions asked by one of the parties involved in the lawsuit.

The method of using a subpoena duces tecum is generally valid only to compel a witness to produce documents and other things at the time of the deposition. If a deponent is not directly involved in the litigation but is wanted for testimony, production of documents can be compelled only through a proper subpoena duces tecum. In the United States, a notice to a party deponent may be accompanied by a request for the production of documents and other tangible things during the taking of a deposition. This notice to produce is served prior to the deposition and follows the Federal Rules of Civil Procedure.

In the 1957 case of Jencks v. United States, the United States Supreme Court ruled that a defendant must have access to government witnesses who will testify against him in a criminal trial and must also have access to any documents pertaining to that testimony. This includes papers, documents, written statements, and similar items. This led to the passage of the Jencks Act, which allows for subpoena duces tecum of relevant government documents, but only after a government agent or employee has testified at trial.

Subpoena power and responsibility

A subpoena is a powerful tool in the hands of a lawyer. It is a court-ordered request for information, issued by a court to compel an individual to provide testimony or produce documents. Subpoenas can be used in almost any area of the law, including civil and criminal cases. They are very specific to a situation and vary in their requirements, expectations, and timing.

The power of a subpoena lies in its ability to force private citizens to hand over documentation or answer questions related to a legal proceeding. This can include providing copies of records, appearing at a deposition, or testifying as a witness. While a subpoena cannot force a violation of the law, it can require individuals to provide information that may be sensitive or embarrassing. For example, a lawyer can be compelled to testify about a breach of professional ethics that is not a crime, such as failing to keep client information confidential.

The responsibility associated with a subpoena rests with both the issuer and the recipient. For lawyers, the increased power of issuing subpoenas is accompanied by greater responsibility and liability for misuse. They must ensure that subpoenas are used ethically and within the bounds of the law. On the other hand, individuals served with a subpoena are legally obligated to comply. Failure to respond or produce the requested documents can result in penalties, including contempt charges, monetary sanctions, or even imprisonment, though the latter is extremely unlikely.

To balance this power dynamic, individuals served with a subpoena are advised to seek legal counsel to understand their rights and obligations. They can also negotiate with the issuing attorney to work out an alternate day or time for compliance. Additionally, individuals can object to producing certain confidential or privileged documents and request a hearing to protect sensitive information.

Subpoena and the Fifth Amendment

A subpoena is a formal written order that requires a person to appear before a court or other legal proceedings to testify or produce documentation. It is a court order compelling a witness to testify or produce documents in their possession, custody, and control. Most people who are subpoenaed are not asked to provide testimony that could implicate them in a crime but are instead providing evidence relevant to a case.

The Fifth Amendment protects individuals from being compelled to testify in a way that would tend to incriminate them in a crime. However, in a civil case, individuals can be compelled to testify against themselves, but this testimony cannot be used against them in a criminal case. The Fifth Amendment cannot be invoked to prevent an individual from testifying about violations of professional ethics that are not crimes.

The Fifth Amendment's Act of Production Doctrine, derived from the Supreme Court's 1976 decision in Fisher v. United States, holds that the Fifth Amendment is implicated when the act of complying with a subpoena is both "testimonial" and "incriminating." This means that an individual can assert their Fifth Amendment privilege against self-incrimination and refuse to produce subpoenaed documents where the act of producing them is incriminating, regardless of the contents of the documents.

The Supreme Court has held that the Fifth Amendment's privilege against self-incrimination protects against the compelled production of any incriminating documents. However, this privilege does not extend to corporations responding to grand jury subpoenas or the contents of business records, as these are considered voluntarily prepared documents and therefore not compelled.

Subpoena compliance and consequences

A subpoena is a legal document issued by a court or a government agency to compel an individual or entity to provide testimony or produce documents relevant to a case. It is a formal written order that requires a person to appear before a court or other legal proceedings, such as a Congressional hearing, and testify or produce documentation.

Compliance with a subpoena is mandatory, and ignoring or resisting it can have serious legal consequences. Subpoenas are legally binding orders, and failure to comply can result in various repercussions, including contempt of court, which can lead to fines, imprisonment, or other sanctions imposed by the court. Financial penalties may also be imposed on those who ignore or resist subpoenas.

To ensure compliance, subpoenas are typically served in person by authorized individuals such as a process server, a sheriff's deputy, or a court clerk. The recipient is handed the subpoena, along with instructions for compliance, and is obligated to respond in a timely manner. The subpoena will specify the required actions, such as appearing for a deposition, producing documents, or taking other specified actions.

It is important to note that recipients of a subpoena have the right to challenge it if they believe there are valid grounds for objection. This could include asserting privilege over certain information, arguing that the subpoena is overly broad or burdensome, or identifying procedural defects in its issuance. Seeking legal counsel is generally recommended before challenging a subpoena.

In the context of business cases, legal experts advise subpoenaed companies to conduct due diligence to understand the underlying lawsuit or proceeding. This analysis may reveal whether the company or its officers are the target of a criminal or civil investigation or if the company may be joined as a party to the lawsuit.

Frequently asked questions