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So You’ve Been Subpoenaed . . .

By D|K’s Litigation Team

While not as troublesome as getting sued, receiving a subpoena can cause major headaches for business owners and other professionals. The austere text of a subpoena makes compliance sound non-negotiable. In fact, the recipient of a subpoena has many options to avoid or modify its commands, and to shift the costs of compliance onto the party serving the subpoena, who should by right bear them.

Subpoena means “under punishment” in Latin. This phrase, is a snippet from a mediaeval writ that commanded its recipient to do something under punishment of law. A subpoena ad testificandum (“for the purpose of testifying”) commands the recipient to give testimony under oath at a trial, hearing, or deposition. A subpoena duces tecum (“bring with you”) requires the recipient to produce documents or other things as part of the pretrial “discovery” process.

Both federal law and Wisconsin law require that a subpoena be served in person in order for it to be enforceable. If you only receive the subpoena by mail, e-mail, or fax, you technically don’t have to comply. Sometimes standing on such technicalities is not worthwhile in the long run, but at the very least, pointing out that you weren’t properly served can buy you some extra time, and show the lawyer who served the subpoena that you know your rights.

With very limited exceptions, a subpoena ad testificandum must be accompanied by payment of a prescribed witness fee and travel mileage to and from the place of testifying. No check, no witness. And the law limits how far you have to travel. Generally, you can’t be forced to testify more than 100 miles from where you live or work, unless you’re being asked to testify at a trial somewhere in your home state. Judges can’t easily move their courtrooms, nor can they ask an entire jury to travel for the convenience of one witness. But if the parties want to depose you before trial, you can insist that they do so in a location convenient to you.

A subpoena duces tecum may give rise to a host of objections. If you receive one, you should promptly consult counsel, since the time for asserting those objections can be very short. Objections may regard the relevance of the documents sought by the subpoena to the underlying case, the interests of parties and non-parties in keeping the documents confidential, and the burden on the subpoenaed party of locating and producing the documents. The serving party may have to limit its requests, or agree to keep information confidential, before it gets the documents it wants.

When one of my clients receives a subpoena duces tecum, I weigh the best possible approach in the interest of my client. One such option can be withholding production until compensation is received from the questing lawyer for the anticipated costs of locating and producing the documents. Such demands are often a helpful avenue to force the opposing lawyer to reconsider the request and it thus can result in a withdrawal of the request.

Would a refusal to produce documents without prepayment stand up in court? There’s no bright-line rule, but it should. Attorneys who serve subpoenas on non-parties have a duty to take reasonable steps to avoid imposing undue burden or expense on those non-parties. Federal law states that the courts “must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply.” Wisconsin has no explicit corresponding provision, but state courts often look to federal courts for persuasive guidance.

When does the burden or expense of responding to a subpoena become “undue”? For a non-party, any time such burden or expense exceeds truly de minimis levels. To avoid vigilante justice, our society subsidizes civilized dispute resolution by funding the court system. When litigants’ inability to resolve their disputes without discovery imposes costs on others, a good judge will force the litigants, and not the non-parties, to bear those costs.

This article appeared in the September 2017 edition of The Business News.