Things to Think About: If You're Not a Party but Get Served with a Subpoena
Things to Think About: If You're Not a Party but Get Served with a Subpoena
This article covers problems that may arise when you are not a party to the lawsuit but are subpoenaed to appear for a deposition or to produce documents in your possession. Your lawyer can file an objection that notifies the party or lawyer serving the subpoena on you that you have a problem with what the subpoena is commanding you to do. The party must then get a court order before you will be required to comply with the subpoena. In certain situations you can also resist a subpoena by filing a motion to quash. A motion to quash asks the court in charge of the lawsuit to rule that, for some particular reason, the subpoena need not be complied with as it is currently written. A motion to quash is sometimes mistakenly referred to as a motion to squash. This name is a mistake in words but not in spirit, as "squashing" the subpoena is exactly what you'd be asking the court to do.
The following proposed solutions are based on the Federal Rules of Civil Procedure. If the lawsuit is being litigated in state court, the rules may be different and you should check the court's rules about third-party subpoenas. Many states follow rules very similar to the federal rules. Other states follow their own path.
1. Legal Representation
Problem: The lawyers representing the parties to the lawsuit do not represent you. That means that although they may answer questions you have about the subpoena, they do not have a duty to provide legal advice, and you should not rely on either lawyer for advice about responding to or resisting the subpoena, or for assistance in responding or resisting. But if, for example, you're being asked to testify about the defendant's trade secrets or to produce confidential information about the plaintiff, they may make their own objections to protect their secrets and confidential information from unnecessary disclosure.
Solution: If you have qualms about producing the requested information, or you don't want to go it alone during a deposition, you should ask a lawyer to represent you. Legal representation is crucial if you cannot comply with the subpoena because, no matter how good your reason is, it does not justify failing to respond to the subpoena; it's a court order even though a lawyer has signed it and sent it to you. Instead, you must ask the court to modify the order or declare that it need not be complied with. If you don't ask the court for assistance, you run the risk of being found in contempt of court.
2. The Subpoena Asks for Documents and Things I Don't Have.
Problem: The party issuing the subpoena has asked you to produce things that you don't have, or as far as you know, don't exist.
Solution: Obviously, you cannot produce something if you don't have it. But if you are in control of the items you are to produce, the fact that they are not physically in your possession will not excuse your failure to produce them. If you don't actually have possession or control over the documents and items being requested, start by contacting the lawyer for the party who has subpoenaed you to let him or her know. If you know who does have the documents and things, consider telling the lawyer. The lawyer probably does not want to plague you. He or she just wants the information. If you can direct the lawyer elsewhere, you might be off the hook.
If the lawyer does not accept that you just don't have the information, you should make a formal objection to the subpoena by notifying the party or his or her lawyer that you object and why. It is best to send a written objection with the date on it. If the case is in federal court, you must do this right away. If fourteen days elapse and you haven't objected, you won't be able to. If you are in state court, the rules may be slightly different, but again, you must not dawdle.
Once you object, the party issuing the subpoena cannot inspect or copy documents without first getting a court order. This is done by filing a motion to compel. If you receive a motion to compel, you will probably want to talk to a lawyer about what to do next.
3. Responding to the Subpoena Would Be a Pain in the Neck.
Problem: To respond to the subpoena you must spend an inordinate amount of time or money to find the documents or the items you're supposed to produce, or you have hundreds of documents, or the like. It strikes you that the party or lawyer is using the subpoena to harass you.
Solution: The legal term for a pain in the neck is "undue burden." The party subpoenaing you has a responsibility to take reasonable steps to avoid imposing an undue burden or expense on you. When it appears that the party is abusing the subpoena process or is harassing you, the court can intercede and sanction the party's lawyer. You ask the court to intercede by filing a motion to quash. If the court agrees with you, the party, or lawyer, may be required to pay your lost earnings and a reasonable attorney fee.
4. The Subpoena Doesn't Give Me Enough Time.
Problem: The subpoena is a pain in the neck because it requires you to respond more quickly than you can manage.
Solution: You should file a motion to quash in which you explain why the subpoena's time limit for responding is unreasonable.
5. The Subpoena Requires Me to Travel Away from Home.
Problem: To comply with the subpoena as it is written, you must travel some distance.
Solution: If the lawsuit is filed in federal district court (you can determine this by looking at the top of the subpoena to see which court issued the subpoena), you cannot be compelled to travel more than 100 miles from your residence, place of employment, or the place where you regularly transact business in person in order to respond to the subpoena. If the subpoena seems to require travel, you can ask the court to quash it. For example, if you live in Anchorage, Alaska, but your business is mostly conducted over the telephone or the Internet, you cannot be commanded to travel to the island of Attu or to Juneau, or to Seattle or any point south or east of there.
If the subpoena commands you to appear to testify at trial, and you would have to travel more than 100 miles to attend the trial at substantial personal expense, you can ask the court to quash or modify it. In this case, the party issuing the subpoena must satisfy the court that you really have to be there and that you will be reasonably compensated for attending trial.
If the lawsuit is filed in state court (again, look at the top of the subpoena to figure out which court issued it), the rules may be different. Many states follow rules that are very similar to the Federal Rules of Civil Procedure, so the solutions discussed above may well apply. You should check the court's rules about third-party subpoenas. If you conclude that the subpoena overreaches by making you travel too far, you can ask a lawyer to help you have it quashed.
6. The Subpoena Asks for Secret or Confidential Information.
Problem: If you respond to the subpoena as it is currently written, you will be disclosing privileged or confidential information. You have your own duty (imposed by the law or a contract) not to disclose the information, so you're in a bind.
Solution: When a subpoena requires disclosure of privileged or confidential information, you may ask the court to quash it. The party or lawyer who subpoenaed you may resist by saying that some legal exception requires disclosure, or that you waived your privilege to keep the information confidential. A waiver can occur when you do some act that compromises the privileged or confidential nature of the information, such as talking about it in public or failing to protect the documents' confidentiality.
If the court concludes that the information is privileged or confidential, but is nevertheless relevant in the lawsuit, the court may modify the subpoena by building in protections against further disclosure, such as a confidentiality agreement.
A Note about Contempt of Court
It is very important that you do something when you receive a subpoena. If you do nothing, you have disobeyed a court order and can be found in contempt of court.
If you have a problem with complying with the subpoena, you must notify the party or lawyer who served you about your problem. This must be done by objecting to the subpoena promptly. If you object, you will not have to produce the information unless the person seeking the information files a motion with the court asking it to enforce the subpoena and the court orders you to comply.
If compliance with the subpoena imposes an undue burden (i.e., it's a pain in the neck), requires you to travel more than 100 miles, doesn't give you enough time to respond, or requires disclosure of privileged or confidential information, you must ask the court for assistance. You do this by filing a motion to quash. In some cases, the court may change the subpoena to protect you better when you respond to it. Filing a motion to quash also should be done right away.
If you do not comply, object, or file a motion to quash you may be found in contempt of court. A finding of contempt may subject you to a fine, or require you to pay damages to the party seeking the information, and you may have to pay that person's lawyer's fees. The court has a lot of discretion in this area; if the court sees you as a pain in the neck, you'll feel it in the sanction.
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