Kara Sears
A subpoena is a court order that can be issued to a person or entity that is not a party to a lawsuit, often referred to as a third party or non-party. Non-party subpoenas are commonly used to obtain documents, electronically stored information, or other information, as well as to inspect premises and obtain testimony. In federal court, a non-party may receive a testamentary or production subpoena, while in Georgia, a non-party may be served with a request for production of documents (RFP) instead of a production subpoena. The consequences for failing to comply with a subpoena can include fines, damages, contempt of court, or an arrest warrant. This article will explore the legal obligations and options for non-parties who receive subpoenas, including deadlines, objections, and strategies for managing compliance.
| Characteristics | Values |
|---|---|
| Who can issue a subpoena? | Attorneys as officers of the court, or the court where the action is pending |
| Who can be served a subpoena? | Persons or entities who are not parties to the lawsuit (third parties) |
| What is a subpoena? | A legal mechanism that commands the production of documents, electronically stored information, or other information, the inspection of premises, testimony at a deposition, hearing, or trial, or a combination of these |
| What are the types of subpoenas? | Witness Subpoena, Subpoena Duces Tecum, Deposition Subpoena, Subpoena ad testificandum or testamentary subpoena |
| What are the consequences of failing to obey a subpoena? | Fines, damages (including attorneys' fees), contempt of court, or an arrest warrant |
| What should a company do after receiving a non-party subpoena? | Confirm that the correct entity was served and that service was proper, preserve relevant documents, implement the company's document retention policy, notify relevant employees, evaluate the company's insurance policies, etc. |
| How should a company respond to a non-party subpoena? | Contact the issuing party, comply with the subpoena, object to the subpoena, move to quash or modify the subpoena, or move for a protective order |
| What are the deadlines for a subpoena? | In federal courts, a production subpoena must specify a time of not less than 20 days after service; objections are due before the earlier of the date of compliance or 14 days after service of the subpoena |
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What You'll Learn
Non-party subpoena types
A subpoena is a legal mechanism that commands the production of documents, electronically stored information, or other information, the inspection of premises, testimony at a deposition, hearing, or trial, or a combination of these demands. The legal force of a subpoena applies to both parties directly involved in the litigation and non-party recipients, who are similarly bound to comply with the subpoena's demands.
There are several types of non-party subpoenas, including:
- Subpoena ad testificandum or testamentary subpoena: This type of subpoena compels a witness to appear and give testimony at a deposition, hearing, or trial. It is a common type of subpoena and often has significant costs and considerations associated with it.
- Subpoena duces tecum or production subpoena: This type of subpoena requires the production of documents, electronically stored information ("ESI"), and other things. It can result in substantial costs and burdens for the recipient, especially when compared to a testamentary subpoena.
- Request for production of documents ("RFP"): In some states, such as Georgia, a non-party may be served with an RFP as an alternative to a production subpoena. An RFP functions as a subpoena duces tecum, as it relates to the production of "books, papers, and other things."
Regardless of the type of non-party subpoena, companies that receive one should take immediate action to confirm proper service, preserve relevant documents, implement their document retention policy, notify relevant employees and departments, and evaluate their insurance policies. Additionally, companies have the option to respond to the subpoena by contacting the issuing party, complying, objecting, or seeking to modify or quash the subpoena.
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Subpoena compliance
A subpoena is a legal document issued by a court, attorney, or administrative agency that compels individuals to provide testimony or produce evidence relevant to a legal proceeding. Compliance with a subpoena involves responding to its directives in a timely manner and providing the requested testimony or evidence as specified. It is essential to carefully review the subpoena and follow its instructions to ensure full compliance as every subpoena will have a specific set of instructions.
In federal court, a non-party may be served with either a testamentary or a production subpoena. A subpoena ad testificandum or testamentary subpoena compels a witness to appear and give testimony at a deposition, hearing, or trial. A company served with a non-party subpoena should immediately confirm that the correct entity was served and that service was proper. They should then take reasonable steps to preserve relevant documents and electronically stored information (ESI) by suspending the routine destruction of documents and implementing the company's document retention policy.
The company may then choose to respond to the subpoena by contacting the issuing party or its counsel to informally resolve any issues, complying with the subpoena, objecting to the subpoena, or moving to quash or modify it. If the company decides to object, they must do so within 14 days of receiving the subpoena. If an objection is made, the issuing party may move the court for an order compelling production or inspection. The company may also request that the issuing party cover the costs of producing materials.
Consequences for failing to obey a subpoena vary depending on the issuing state or federal court but may include fines, awarding of damages, contempt of court, or issuance of an arrest warrant.
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Consequences of non-compliance
Non-compliance with a subpoena is not an option. The consequences of failing to obey a subpoena can be dire, and courts have several tools to enforce compliance. While the specific penalties vary depending on the issuing state or federal court, all courts can impose fines, award damages (including attorneys' fees), hold the non-complying party in contempt of court, or issue an arrest warrant. This means that failure to comply with a subpoena can result in significant financial costs and even imprisonment.
In the case of McNulty v. McNulty, the nonparty witness chose to resist the examination by applying for a protective order and moving to quash the subpoena. However, as demonstrated in Manswell v. Baptiste, non-compliance is not an option, and the defendants in that case were held in contempt and fined.
To avoid these consequences, it is crucial to take prompt action upon receiving a non-party subpoena. This includes confirming that the correct entity was served, preserving relevant documents, implementing the company's document retention policy, and evaluating insurance policies' notice requirements. Additionally, the subpoenaed party has the option to file a written objection within 10 days or before the compliance deadline, whichever is earlier.
While non-compliance with a subpoena is not advisable due to the potential penalties, there are ways to challenge or modify the subpoena through legal processes.
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Responding to a non-party subpoena
Receiving a non-party subpoena can be a daunting experience, but with prompt action and a well-thought-out strategy, it need not be a nightmare. Here is a step-by-step guide on how to respond effectively:
Step 1: Understand the Subpoena and Your Rights
It is essential to carefully review and understand the subpoena, including the specific materials or actions requested. Non-party recipients have protections against undue burden and expense, so evaluate your rights and duties, especially if the subpoena imposes unreasonable demands.
Step 2: Consult Internally and Externally
Notify key internal stakeholders, such as company officers, relevant employees, and the IT department. Consult with in-house counsel and, if necessary, outside counsel to assess the potential burdens and costs associated with compliance. This step will help you make informed decisions about how to respond.
Step 3: Preserve Relevant Documents and Evidence
Take immediate steps to preserve relevant documents, electronically stored information (ESI), and other evidence. Implement a litigation hold to ensure the routine destruction of documents is suspended, and follow your company's document retention policy. This step is crucial to avoid any accusations of tampering with evidence.
Step 4: Evaluate Insurance Policies and Potential Costs
Review your company's insurance policies to determine if the subpoena triggers any specific requirements or coverage. Additionally, assess the potential costs of compliance, as you may be able to negotiate with the requesting party to share these expenses, especially if they are substantial.
Step 5: Decide on a Response Strategy
You have several options for responding to the subpoena:
- Comply with the Subpoena: You may choose to provide the requested materials or allow the inspection of premises or testimony.
- Object to the Subpoena: If the subpoena is overly broad or imposes undue burden or expense, you can file a written objection with the court and serve it on the attorney listed in the subpoena, usually within 10 days or before the compliance deadline.
- Move to Quash or Modify: If the subpoena is unreasonable or unlawful, you can file a motion to quash or modify it, especially if the requested information is complex and you need more time to respond.
- Negotiate and Narrow the Scope: Engage in good-faith discussions with the issuing party to potentially narrow the scope of the subpoena and obtain coverage for your costs.
Step 6: Communicate with the Issuing Party
Contact the issuing party or their counsel to address any issues or concerns. Expressly requesting modifications at an early stage may result in a more mutually beneficial agreement. It is in your interest to resolve matters promptly, as non-party discovery issues can quickly become more complex and burdensome.
Remember, each case is unique, and it is always advisable to seek legal advice from qualified professionals to ensure you are complying with all relevant laws and regulations.
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Subpoena protections
A subpoena is a formal written order that requires a person to appear before a court or other legal proceeding, such as a Congressional hearing, and testify or produce documentation. It is a legally binding order, and failure to respond to it may be punishable as contempt of court.
When it comes to subpoena protections, there are several important considerations. Firstly, a subpoena must be issued by a court and served through mail, email, or personal delivery. This ensures that the person receiving the subpoena has been properly notified and has a chance to respond.
Secondly, the person or entity served with a subpoena has the right to object or challenge it. They can do this by filing a written objection with the court and serving it on the attorney listed in the subpoena, typically within 10 days or before the compliance deadline. This allows the recipient to dispute the subpoena if they believe it is unreasonable or unduly burdensome.
Thirdly, the recipient of a subpoena is protected from significant expense resulting from compliance. This means that the court will consider the financial burden on the person or entity complying with the subpoena and may adjust the costs accordingly.
Fourthly, in the case of non-party subpoenas, there are additional protections in place. A non-party recipient is typically entitled to substantial protections from undue burden and expense. This means that the court will consider the impact of the subpoena on someone who is not directly involved in the litigation.
Furthermore, Rule 45 of the Federal Rules of Civil Procedure provides specific protections for individuals and entities involved in the subpoena process. For example, it clarifies and enlarges the protections afforded to those who are required to assist the court by providing information or evidence. It also establishes procedures for issuing and responding to subpoenas, ensuring that the process is fair and transparent for all parties involved.
Finally, seeking legal advice from an experienced litigation attorney is always recommended when dealing with a subpoena. An attorney can help navigate the specific procedures and protections available in different jurisdictions and ensure that one's rights are protected throughout the legal process.
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Frequently asked questions
A subpoena is a legal mechanism that commands the production of documents, electronically stored information, or other information, the inspection of premises, testimony at a deposition, hearing, or trial, or a combination of these demands.
If you receive a non-party subpoena, you should act promptly, usually within 14 days. You should confirm that the correct entity was served and that service was proper, take steps to preserve relevant documents, and evaluate your insurance policies' notice requirements.
All courts have the power to enforce compliance with a subpoena, either by imposing fines, awarding damages (including attorneys' fees), holding the non-complying party in contempt of court, or issuing an arrest warrant.
