SUBPOENAS

By Bethany Brantley Johnson

After a case is filed, a party begins the process of gathering information to prove the theories of the case. The process of collecting information is called "discovery." Discovery generally takes the form of interrogatories, document requests and requests for admissions served on the opposing party. In addition, one may serve subpoenas or use authorizations to obtain documents from third parties. This checklist will address these methods for obtaining documents from third parties.

Subpoenas are used to compel the attendance of non-parties at judicial proceedings or depositions, for the production of documents, or to compel both. A subpoena for the production of documents is called a subpoena duces tecum. Federal Rule of Civil Procedure 45 explains the procedure for obtaining, serving and objecting to subpoenas issued in federal court.

SUBPOENAS

Form and issuance of subpoenas

  • The subpoena must contain the style (or caption) of the case, the name of the person (or entity) compelled, indicate whether the subpoena seeks attendance, production or both and provide the date/time and location for attendance and/or production.
  • Any attorney authorized to practice in federal court can issue a federal court subpoena. 1 The district court clerk may also issue subpoenas.
  • A deposition subpoena must be issued from the court in the jurisdiction where the deposition would be compelled. Likewise, a subpoena for attendance at trial or hearing must be issued from the court for the district where it will be held.
  • A federal subpoena may be served anywhere in the United States.
  • Be sure to consult, in advance, the local district court rules in the jurisdiction where the action is pending for special rules regarding subpoenas.
  • Make the language of your subpoena as concise and clear as possible, and don't ask for overly broad categories of documents that you truly do not need. The more you can limit your subpoena, whether by date, scope, or otherwise, the more likely you will get the requested documents with ease.
  • Often, a brief cover letter accompanying the subpoena is helpful, particularly if you are serving a subpoena for documents on a small company that might not be familiar with how to respond. Typically, the cover letter would include basic language that explains in general terms who you are, who you represent in the pending action, and why you are seeking these documents, such as "the plaintiff has asserted a claim for emotional distress damages and claims to have sought medical treatment at your facility." In addition, a cover letter which is politely phrased may give the recipient more comfort in calling you to resolve any issues with the subpoena rather than retaining a lawyer to object to the subpoena in full.

Service of subpoenas

  • A subpoena can only be served by a non-party over the age of 18 and service must be made by personal delivery to the witness.
  • If the subpoena commands attendance, the appropriate witness and/or mileage fee must be tendered when serving the subpoena. Consult the rules, statutes or the clerk to determine which fees are due.
  • The "100 mile rule," as it is generally referred to, allows service within 100 miles of the place of attendance or production if that place is not within the district where the action is pending. Note that you may be able to serve a subpoena on someone outside the "100 mile" limitation if the state court of general jurisdiction has authority under state law to issue subpoenas in a larger geographic area. Note, however, that your subpoena will be vulnerable to a motion for protective order if it requires the recipient to travel more than 100 miles. See Fed. R. Civ. P. 45(b)(2) and Fed. R. Civ. P. 45(c)(3).
  • After service, process is completed when the server completes and files the "Proof or Return of Service" with the issuing clerk. Review the document to make sure it is accurate and conforms to the requirements of the applicable rule. See, e.g ., Fed. R. Civ. P. 45(b)(3).

Subpoena for documents only

  • Under Rule 45, you must notify all counsel of record of your intent to serve a subpoena "prior to" actually serving it. This permits other parties an opportunity to object to the subpoena.
  • The person commanded to produce documents does not have to appear at the location of production unless also subpoenaed to appear. Production may be satisfied by mailing the documents to the person at the location provided in the subpoena. Be sure to note on the face of the subpoena whether appearance is required. It is also good practice to reiterate in your subpoena cover letter whether compliance may be satisfied by mailing.
  • Often subpoenas are addressed generically to the "Custodian of Records" of entities like insurance companies or hospitals. However, a better practice is to call the entity, obtain the name of the custodian and identify that person by name and title on the face of the subpoena. Some entities require payment of photocopying fees at, or in advance of, the time that documents are produced. Be sure to ask if photocopying fees are required in advance, as you will need to submit them with the subpoena to eliminate delays.
  • The producing person is to provide the documents as they are kept in the ordinary course of business or organize them by categories that correspond to the requests in your subpoena.
  • A privilege log must be provided for any documents withheld from production. The log should identify the documents in a manner sufficient to allow the requesting party to contest the privilege claim and move to compel production. If a log is not provided, or is inadequate, seek court assistance usually by a "motion to compel."

Objections to subpoena

  • A person commanded to produce documents may object to production within 14 days after service of the subpoena or prior to time for compliance if production is to be within less than 14 days. 2 Upon receipt of such an objection, the party seeking the documents may file a motion to compel with the court, stating grounds for production. If you represent the party seeking documents, request prompt cooperation from the subpoena recipient. This can obviate the need for filing a motion.
  • Alternatively, a third party that is not the subject of the subpoena may file and serve a motion to quash the subpoena and/or for a protective order. For example, if you subpoena plaintiff's bank records from ABC Bank, plaintiff may file such a motion. The motion sets forth the grounds for objection. The motion is filed with the court and served upon the party seeking the documents.
  • Note that a request for documents may not impose undue burden or expense on the person/entity compelled. When drafting a motion to compel, it is a good practice to note that the subpoena has not violated this provision.
  • After a motion to quash or to compel is filed, the court will rule and quash (void the subpoena entirely) or modify the subpoena. The rules identify circumstances where the court may quash or modify. Fed. R. Civ. P. 45(c) Consult the rules for these specific circumstances, and again, reiterate in your brief that you have not violated these provisions.

Contempt

  • A subpoena is a court order. Therefore, failure to obey without an "adequate excuse" will subject a person to contempt sanctions. Fed. R. Civ. P. 45(e).
  • To invoke the sanctions provisions, a party files an application for an order to show cause why contempt sanctions should not issue. If granted, the court issues an order to the third party to appear at a hearing to show its "adequate excuse." This procedure is largely uncommon. Consult an experienced practitioner if you think such an application may be necessary.

AUTHORIZATIONS

An authorization or release signed by the opposing party is another method for obtaining third party documents. Authorizations may be used to obtain a variety of records, like those from medical providers or former employers.

Generally

  • It is entirely appropriate to present the request for authorization/release in your request for production of documents to the opposing party.
  • Should the opposing party object to execution of the authorization, you may file a motion to compel and seek an order compelling execution.
  • The authorization should be very clear as to the time frame that the authorization covers, the specific type of and scope of documents that it covers, and whether there are any limitations on the authorization.

For medical records

  • All authorizations/releases for medical records must be HIPAA compliant. 3

In conclusion, a party will usually obtain documents from the opposing party through requests for production of documents. However, the party is only required to produce the documents in its possession. Therefore, it is prudent practice to obtain documents from third parties by use of subpoenas and authorizations in order to assure that you have obtained complete records. Often cases turn on information contained in third party documents. Thus, an understanding of procedures regarding subpoenas is essential to gathering and investigating all information relevant to claims or defenses in the case.


1 Note that there are commonly differences in state court practice, and in many cases, the clerk of court must actually "issue" or sign the subpoena before it can be served. If your case is filed in state court, closely review state statutes and rules regarding subpoenas.
2 Note that the time for objecting may vary in state court. Consult your state rules.
3 The "Standards for Privacy of Individually Identifiable Health Information" promulgated by the Department of Health and Human Services pursuant to HIPAA (Health Insurance Portability & Accountability Act), restrict Health Care Plans, Health Care Clearing Houses or Health Care Providers from divulging protected health information like individual patient medical records. 42 U.S.C. §1320d-2.

Resources

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About the Author

Ms. Johnson is a partner with Lewis Fisher Henderson Claxton & Mulroy, LLP in Jackson, Mississippi where she practices labor and employment law. Ms. Johnson is admitted to practice in Mississippi and Louisiana. She is a member of the American Bar Association, Federal Bar Association, Hinds County Bar Association, and the Louisiana and Mississippi Bar Associations.


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