Getting served with a subpoena is perhaps the most common way to find yourself involved in unanticipated litigation. Even when you get sued, you usually have some idea that it’s coming — a business deal went bad, you had a dispute with someone over a bill, you drove your car into someone’s living room — something happened that made you think “Hmm … lawsuit?”
But subpoenas come to those who may not be involved in the dispute at all, but just happen to have documents or information that one of the parties needs (or thinks they need) to prove their claims or defenses. It’s like being pulled out of the audience of a magic show at random to help with the trick, only the magician is a litigation attorney and the colored handkerchiefs he asks you to hold are a series of document requests preceded by an elaborate and confusing set of definitions and instructions. Oh, and if you don’t agree to cooperate, there’s no audience on hand to boo you, but you might end up in trouble with a judge.
In any event, it is often an unwelcome surprise to be dragged into someone else’s litigation this way. Understandably, if you receive a subpoena you are probably not going to be in a hurry to spend money on an attorney to help you respond. You probably have nothing to hide. You’re probably happy to cooperate with the attorney to get them whatever they need. No need to bring an attorney into it if you’re going to cooperate, right?
This might surprise you: You may be right.
You may be perfectly capable of responding to a subpoena without counsel.
That said, there are a number of potential pitfalls that you might encounter if you do. Here are a few handy tips for tackling this scenario (and knowing when you probably shouldn’t do so alone).
The Risks of the Writ
1. It’s not called “Under Penalty” for nothing.
First, make no mistake about it: Even though a subpoena was issued by a lawyer (usually by having it notarized), it has the full force of a court behind it, and judges react strongly if you ignore a subpoena — it’s as if you are challenging their authority. And let’s face it, if judges don’t have authority then we’re back to hitting each other with sticks to decide who gets the apple, and nobody wants that. So the first word of caution is to take this seriously. There are ways to object to a subpoena if you think it’s unfair (or unnecessary), and you can probably work with the attorney who issued it to accommodate you in some ways, but it’s a big mistake to just ignore it and hope that nothing will happen. Save that approach for the ominous-looking letter from your kid’s principal.
2. Your pages or your presence?
Subpoenas come in two basic flavors, each with its own nifty Latin phrase: document subpoenas (subpoena duces tecum) and deposition subpoenas (subpoena ad testificandum). And it’s possible, of course, to get a subpoena for both. So the first order of business is sorting out which one the attorney is after. This can be tricky because a document subpoena usually calls for you to show up at a deposition, but asks that you bring documents with you. Of course, that’s how it would look if the attorney wanted both your documents and your testimony at deposition. But if they only want the documents, you usually don’t need to show up for a deposition, you can just send the documents. Usually. (Confused yet?)
Attorneys generally issue subpoenas with the assumption that you will hire an attorney, and that the attorney will call them up to straighten out exactly what is needed (and when). So the safest course may be just to give the attorney a call. Explain that you received the subpoena, and that you want to comply with it, but you’re not sure what exactly they need from you. They should be happy to clarify whether or not they need you to attend a deposition, or if sending them some documents will suffice.
Oh, and if you are required to give testimony at a deposition, you should probably bring an attorney along. At the very least, remember to Tell The Truth. You will, after all, be under oath. (And the truth is so much easier to remember.)
3. Let’s make a deal.
As long as you have the attorney on the phone, this would be a good time to mention (or even negotiate) any problems that you have with what the attorney is seeking. For example:
- If they are looking for too many documents, and you think they really only need a smaller set, say so. Sometimes attorneys ask for a schooner when they only need a sunfish, anticipating some resistance and discussion. That’s not a great way to practice, but it happens. And often those same attorneys will agree to take the sunfish out for a little while, and then ask for an upgrade if it doesn’t suit their needs. (Translation: They might accept a smaller set of documents from you initially, but reserve the right to ask for the rest if they later discover that they really need them.)
- If they have scheduled your deposition for a date that is inconvenient, tell them so and propose some other dates.
- If you need more time to gather the documents, say so. Maybe this is not a matter of urgency. Maybe there is a sub-set of documents that the attorney needs immediately, and the rest can wait. There’s no harm in asking.
Assuming that you reach some sort of accommodation with the attorney, make sure that it exists someplace in writing. A follow-up letter, an e-mail confirming the agreement, or a revised subpoena from the attorney — one way or another, you need a document that the attorney has written (or acknowledged) that agrees that you can do something different or less than was called for in the original subpoena. Otherwise, if there was a misunderstanding, it might one day look to a judge like you ignored the subpoena. And for the reasons covered above, that’s a Bad Idea.
4. Write a letter.
Sometimes even reasonable people can’t come to an agreement, and who knows? There might even be an unreasonable person somewhere in your conversation with the attorney. If the attorney is asking for something that you cannot (or will not) provide, you need to make a formal written objection. Fortunately, that can usually take the form of a letter to the attorney.
Let me stress that, if you’re to the point of making a written objection to a subpoena because the attorney won’t agree to an alternative that you have proposed, there is a pretty good chance that your disagreement will eventually land in front of a judge. This would be a good time to give real consideration to retaining an attorney to help you. But if you are dead set on going it alone, at the very least you need to send a letter to the attorney, explaining why you cannot provide what they ask (or shouldn’t have to), and explaining what it is that you are willing to do. Keep in mind that a judge will probably be reading this letter at some point.
Recent experience has taught me that, while responding to subpoenas may feel like an unfair imposition, the degree of imposition and difficulty increases pretty quickly when people do not take them seriously. Ideally, you should consult an attorney when you receive a subpoena. But if you do respond on your own, make sure you take the process seriously, communicate any concerns clearly with the attorney who issued the subpoena, and put your objections (and their concessions!) in writing. And if you are required to give testimony at a deposition, see if they will postpone until after I’ve written a blog post with my advice about being deposed.
(Or, better yet, give me a call.)