Subpoenas are commonly used in civil litigation to obtain evidence from individuals, corporations and other entities that are not parties to a lawsuit. The recipient of a subpoena may respond in several ways. Depending on the circumstances, the recipient may:
1. Decide on potential objections
Once the recipient has been served with a subpoena or knows that it will be served, he or she has a duty to identify and preserve responsive documents and other information. The recipient’s duty to preserve is triggered regardless of whether they believe that the subpoena is objectionable; ultimately, it is the court that determines the subpoena’s validity. The first step, prior to responding, is to determine what objections exist, if any. In general, objections to subpoenas vary from procedural flaws to further substantive ones, such as privilege. Whether one or all of these objections may be raised should be determined prior to responding in order to avoid any claim of waiver. A general list of objectionable procedural defects include the following:
The general substantive objections to a subpoena are as follows:
After considering the potential objections to a subpoena, the next step is the presentation of written objections. These objections must be served on the party or attorney designated in the subpoena before the earlier of the return date or 14 days after the subpoena is served (FRCP Rule 45(c)(2) (B)). This is important to remember because it is different than serving written objections to requests for documents served under FRCP Rule 34, which are generally due 30 days from service. The failure to timely comply with a subpoena without adequate excuse constitutes contempt of court (FRCP Rule 45(e)). Additionally, all objections may be deemed waived if the recipient fails to serve its objections on time. That said, courts sometimes excuse untimely objections in certain circumstances, such as where the recipient and the issuing party attempted to negotiate an extension of time in which to comply, or where the subpoena is overbroad on its face, imposes a significant burden on a non-party witness, or sets a return date that does not allow for sufficient time to comply with it.
The inevitable final step is to abide by those aspects that are not objectionable. A person subjected to a subpoena is obliged to obey it— failure to do so without sufficient excuse could result in a finding of contempt and the imposition of fines and costs. Also, the court may issue a bench warrant in order to compel compliance. Knowing when (and how) to object and when to comply is the key to effectively and advantageously responding to a subpoena. Make it your new mantra: object, present, and comply!