Imagine your daily mail includes a thick envelope that looks like it comes from a law firm. Or, imagine some stranger hands you the same envelope. Inside is a legal looking document that says it is a subpoena. What should you do? Should you panic? After all, subpoena is Latin for “under penalty.” To lessen anxiety, the following walks you through what to consider.
What is a subpoena? A subpoena is a legal order directing you (or whomever or whatever entity subpoenaed) (1) to produce yourself at a place and time to testify at a trial or a deposition or (2) to produce documents or other tangible things (a subpoena duces tecum). When subpoenaed to testify, you might also be directed to bring documents or other items.
Subpoenas often seek only documents from entities, such as a company or nonprofit. If a subpoena seeks entity testimony, it should “describe with reasonable particularity” the matters for testimony. The entity then designates the person or persons it wishes to testify on its behalf.
What do you do first? Read the subpoena. Note to whom (you, another individual, an entity) the subpoena is directed and what it directs whomever to do.
If your envelope has a subpoena directed to an entity and the entity has an in-house lawyer, immediately send the envelope and its contents to that lawyer. For all other subpoenas, the envelope gives you three not-so-good choices: (1) You can ignore its contents; (2) you can call an outside lawyer for help; or (3) you can respond without a lawyer.
What is the best of these three choices? Of the three choices, ignoring a subpoena is most likely to create problems. That it is the worst choice. Don’t do it.
That leaves you to respond to the subpoena yourself or call a lawyer. The safest step is to call a lawyer, but you will probably have to pay him or her. Depending on the circumstances, responding yourself might be reasonable and avoid legal expenses. So, what should you consider when deciding whether to call a lawyer?
Have you been served with a real subpoena? A real subpoena has “subpoena” and the full name of a court in the text towards the top of the first substantive page. It can be issued by a judge or clerk of the court, by a private lawyer, or by a prosecutor as part of a governmental investigation. It is not always filed with the court, so you cannot confirm online whether a particular subpoena is real. If you have questions, you can contact whoever issued it. Remember, though, that what you write or say can be used against you in court. If you have interests that might be compromised, call a lawyer before talking to anyone else about the subpoena.
Could the subpoena be part of a scam? Scammers send documents that look like subpoenas. A real subpoena is served by an individual or by registered or certified U.S. mail. If you receive a subpoena by email, telephone, or text, it is almost always part of a scam. In addition, a real subpoena directs whomever to appear at a particular place and time to testify or to produce documents. If a subpoena directs you to telephone instead, it is also probably part of a scam. For scam examples, see https://www.mnd.uscourts.gov/Scam-Alerts.shtml. If you, for any reason, think that a “subpoena” might be part of a scam, call a lawyer.
Is a search warrant a subpoena? If a law enforcement officer has a search warrant, that is not a subpoena. Do not interfere with the law enforcement officer’s search and call a lawyer for help ASAP. Keep notes as to what is searched and what is seized. With government investigations, you are at risk. Call a lawyer if you are served with a search warrant or if a governmental investigator informally asks to search your home or office.
What if the subpoena is not directed to you? If the subpoena is not directed to you, your company, or some other entity for which you are responsible, call a lawyer. The subpoena has probably been improperly served. If you are just unsure as to whom the subpoena is directed, call a lawyer.
Is responding quickly important? Whether you try to do your best to respond to a subpoena without a lawyer or you call a lawyer, do not delay. Subpoenas often require responses quickly, sometimes within one day. Not responding to a subpoena in a timely manner can create legal problems.
What can you do if you cannot comply? If the subpoena directs you to appear for trial testimony at a place or date that does not work for you, changing the trial place or date is unlikely. A subpoena may have such a short deadline that you cannot comply in time. You can contact whoever issued the subpoena and seek accommodation but may need to call a lawyer. If the subpoena is for a deposition, you can call the party that noticed the deposition. Usually, re-scheduling a deposition to a different place or date is a matter of negotiation. Most likely, a lawyer can more easily handle these issues for you.
What is the next step if the subpoena seeks testimony? Almost always, call a lawyer for help if the subpoena directs you (or whomever or whatever entity subpoenaed) to appear and testify. An exception would be if you are only a disinterested third-party witness. For example, you are directed to testify when you are only a disinterested eye witness who was standing on the street corner and saw a stranger run a red light and thus cause a car accident.
What is the next step if the subpoena seeks documents? If you have been served with a subpoena seeking documents, after seeing who has been subpoenaed, the next step is to preserve the documents or things requested. This step is called a litigation hold. For example, you should have any email auto-delete feature turned off. For an entity to implement a reasonable litigation hold, call a lawyer.
Can you just provide the documents yourself? If a subpoena only seeks documents, you can just provide the documents without consulting a lawyer, but rarely should you. If you respond and do not give a full response, and without formally objecting, you might find yourself with the same problems you would have had if you had ignored the subpoena.
Additionally, subpoenas often are too broad in scope, seeking more than you should have to provide. A subpoena might seek (1) all documents on a topic, which can include privileged information, including attorney-client, spousal, and journalist shield privileged information; (2) documents that reflect trade secrets, protected health information, or personal information like bank account numbers or social security numbers, or (3) so many documents or archived documents that the cost of producing the documents is overly burdensome. To argue that you do not have to provide all or some of the subpoenaed documents requires formally objecting, a motion to quash the subpoena, or a motion for a protective order. If you may have subpoena scope issues, call a lawyer.
What miscellaneous issues are there? When responding to a subpoena, you have other issues that might need to be considered. As examples, responding without raising objections usually waives the objections, including the attorney-client or other privileges. Testifying or producing documents might implicate your rights under the Fifth Amendment of the U.S. Constitution not to testify against yourself or otherwise incriminate yourself. Documents must be produced as kept in the usual course of business or must be organized and labeled to correspond to categories of the requests included with the subpoena. If you are unsure whether you can handle the testimony or the document production, call a lawyer.
Conclusion. Receiving an envelope with a subpoena requires a prompt response. Under rare circumstances, you might be able to respond without calling a lawyer. Usually, your best choice is to call a good lawyer.