How to Evaluate and Respond to a Subpoena

Receiving, or “being served”, a subpoena can be a troubling and confusing event. The first thing to do is not panic nor react. Take a deep breath — this article will give you a high-level overview of what a subpoena is, explain how to evaluate it and how to respond to it.

Types of Subpoenas

Subpoenas may be issued by many different entities, including courts, prosecutors, law enforcement, attorneys, administrative bodies, and grand juries, just to name a few. Regardless of their source, a subpoena is essentially a court order and should be treated seriously. Subpoenas come in many “flavors”, but generally conform to two broad categories: 1) a subpoena for appearance; and/or 2) a subpoena for documents and “things”. Each has its own peculiarities and will be discussed separately below.

In addition to the type of subpoena, there are other aspect of the subpoena to consider when evaluating how to respond. First, it is important to consider the source of the subpoena. How you will respond may vary based on the issuing entity. For instance, the manner in which you respond to a grand jury subpoena may be drastically different that how you would respond to a subpoena issued by one of your friends in a civil dispute. Related to this concern is a consideration of the type of proceeding that forms the basis of the subpoena. Particularly, even the basic distinction between a criminal vs. civil matter may be of huge significance. Second, for our discussion here, your role in the proceeding may be of grave importance. If you are the target of a grand jury (i.e. suspected of committing a crime), your reaction may greatly differ from being served a subpoena as the custodian of routine business records.

Subpoena for Appearance

A subpoena to appear somewhere is exactly that: it is in an order for your appearance in a certain location on a particular date/time. Typically, unless the subpoena also includes a request for documents and “things” (discussed below), the reason for such a subpoena is to obtain your testimony in some manner of legal proceeding. Common proceedings are:

  • Grand jury presentation – to allow the grand jury to consider your testimony related to possible criminal charges, usually against someone else.
  • Deposition – to obtain testimony to be used in a civil case, again usually involving other parties.
  • Trial – may be civil or criminal, but require your testimony in court.
  • Administrative proceeding – there are myriad entities that issue such subpoenas, including licensing bodies, oversight committees, taxing authorities, etc.

When your testimony is the object of a subpoena, it is important to evaluate the expected scope of that testimony and any risks to you or company that may be exposed through that testimony. It is almost always advisable to seek legal advice before deciding how to respond.

It is necessary to evaluate the timing of any subpoena demanding your appearance. There are almost always legal rules governing the type and extent of inconvenience that may be asserted on the target of a subpoena to appear. Things such as length of required notice, scope of geographic inconvenience allowed, and total time investment expected of you, are all considerations that vary depending upon the nature of the subpoena. You attorney can assist you in evaluation the propriety of a particular subpoena, and steps to take if the subpoena is improper in some fashion.

Subpoena to Produce

While a subpoena to appear and testimony is always concerning, a subpoena to appear and ALSO PRODUCE documents and “things” can be even more daunting. Often such subpoenas are far-reaching in scope, even impermissibly so. When ordered to produce documents, the first thing to evaluate is the extent to which such documents are in your possession or control. Oftentimes, a subpoena may instruct someone to produce documents they do not have. However, in many situations, a legally sufficient response may require a party to actually obtain records for production elsewhere, so long as they are in the party’s control. Moreover, there are often options for how to respond to such subpoenas. If you are unsure regarding the scope of your obligation in such a situation, it is imperative that you seek legal advice. Failure to produce documents when subpoenaed may result in contempt sanctions, as many subpoenas are no different than explicit court orders. And, failure to respond to a court order is obviously a serious matter (and may even be criminal in limited circumstances).

Consideration for Liability

As a final consideration for the purpose of this article, it is indeed necessary to evaluate your role in the relevant proceeding. Most importantly, you must consider your potential liability and consequences to you (or your organization) for appearing to provide testimony, procuring and producing records, or doing neither of these things when facing a subpoena. As everyone knows from television and movies, there occasions when we each have the right to remain silent, and failing to do so may be used very effectively against you. And, even if you have done nothing wrong, it can nonetheless be exceedingly important to protect your and/or your business’ privacy. Guidance of a trusted attorney is your best protection when served a subpoena.

Business Law Southwest, LLC (BLSW). Business Law That Makes Business Sense. A Slingshot company.

About dkochersberger:

Don Kochersberger is an attorney and partner of Slingshot, LLC, the parent company of Business Law Southwest, LLC, and Law 4 Small Business, P.C. He is licensed to practice law in New Mexico and Texas, and leads the firm's litigation practice.

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