Finding a Way Out of a Subpoena
After receiving a subpoena, the first thing many people wonder is what some valid reasons they could use to get out of a subpoena are. Being served with a subpoena can be an intimidating process if someone has not encountered it before, and not following the directions correctly can result in severe penalties.
Subpoenas are serious documents that require the recipient to provide information on a case in some way, and they can be a hassle to deal with in certain situations, yet the cost of not complying with the request can sometimes make avoiding a subpoena not worth it.
However, there are certain reasons that a person may be able to avoid providing the evidence needed and may be excused from the duty. This article will provide some information on the subpoena process and then turn to the various reasons that a person may be able to avoid responding to a subpoena. It will end with a discussion outlining the costs and benefits of avoiding a subpoena to help illustrate the fine line that many of the exceptions walk.
The Purpose of a Subpoena:
A subpoena is a court order to provide information to the court either by testimony or documents. The word subpoena is a Latin word that translates to under penalty. This means that the person receiving a subpoena must provide the information to the court or face a penalty. While this may seem harsh, it provides a vehicle for parties to require witnesses to testify and produce documents on their behalf when they have information that is vital to the case. They are particularly common in criminal cases where witnesses may be more reluctant; however, many civil cases will utilize the subpoena for documents that are needed that someone other than one of the parties has. Subpoenas allow the court and the jury to hear the most complete evidence necessary for the case to be decided. Finding a way to present all the evidence allows the parties to feel confident in the outcome of their case.
Types of Subpoenas:
As hinted at above, two types of subpoenas may be served upon a person. These types require different types of information to be shared with the court. Each type will be sent by the party seeking the information. These types are:
- Subpoena ad testificandum: When people hear a subpoena, the subpoena ad testificandum is what will immediately come to mind. This is the subpoena to testify, meaning that the person receiving the subpoena will be required to appear and testify about the information that they have for the case. This is most commonly to testify at trial, but it can also include testifying at a deposition, or a conference before the trial where one party asks a witness questions under oath. Sometimes a subpoena will be for both, but it must include the dates that the person will be required to testify.
- Subpoena duces tecum: This is the other kind of subpoena that requires the recipient to produce the documents requested in the subpoena. Subpoena duces tecum could be many documents, including business or medical records, notes, emails, and account statements. The subpoena will list the date that the documents need to be provided, and the recipient of a subpoena for documents may often recover the costs of producing the documents, such as costs of copying or shipping. These are the more common form of a subpoena because it is the easiest way to get a person who is not a party to turn over documents.
There are reasons that parties may want to avoid complying with a subpoena for either type, but people are typically more reluctant to comply with a request to testify, simply because testifying at a trial can often feel overwhelming. As we will discuss later, there are considerations when thinking about trying to avoid a subpoena that may affect the party’s interests.
Ways to Avoid the Subpoena:
The most important thing to remember when attempting to avoid a subpoena is that it cannot be ignored. Choosing to ignore a subpoena will likely subject the recipient to contempt of court, which will often result in fines and potential jail time. Because of this, it is important to communicate with either the party issuing the subpoena or an attorney when considering attempting to have the subpoena quashed. An attorney can analyze the situation and the unique facts that apply to determine if there is a valid excuse for quashing the subpoena. That being said, there are several reasons that a party could claim to avoid testifying or providing documents, including:
- Service: Like any other pleading, a subpoena must be served on the recipient. This means that it must be delivered to the person in such a way that they are likely to receive it. The rules for the service of a subpoena and attorney-client relationship vary depending on the type of subpoena that is issued and whether it is issued by a judge or not, but failure to comply with the service rules for the specific subpoena may allow the witness to avoid testifying. This can only be done through a motion, and it would be wise to contact legal counsel to help with this motion.
- Scheduling: Occasionally, a subpoena may end up conflicting with a planned trip or with an important workplace issue. When this happens with a subpoena to testify, it may be possible to reschedule. To do this, the witness should contact the party or attorney that sent the subpoena and tell them about the conflict. They will be able to request a different date. This may not always happen or be possible if the whole trial is scheduled within the conflict time, so it may be important to plan how to appear if necessary.
- Privilege: There are two types of privilege that apply to subpoenas—the attorney-client privilege and the privilege against self-incrimination. It may not fully quash the subpoena, but it will limit the information that the recipient will be required to share. The attorney-client privilege applies to communication between a client and an attorney. Self-incrimination applies when the person responding to a subpoena may be asked to share information that could incriminate them if they say it. Usually, this is present in criminal cases where accomplices are testifying against each other. It is still important to speak with an attorney, even if a person believes their entire testimony or documentation will be considered privileged.
- Jurisdiction: Jurisdiction is a legal term that means that the court has the power and authority to decide the case. This is a complicated legal concept, but there are two ways that it may end up affecting a person’s subpoena. First, the court that issued the subpoena may not have jurisdiction over the subject matter of the case, so they cannot issue subpoenas in the case. Alternatively, the court may not have jurisdiction over the person receiving the subpoena for a variety of reasons. Again, this can be a difficult issue to grasp fully, so it would be best to speak with a lawyer about the issues.
- Broad: Many jurisdictions require that the subpoena be specific in light of the litigation that the testimony is sought. This means that the subpoena is asking for more information that is reasonably related to the litigation, it may be possible to avoid complying with the subpoena; however, this must be determined at a hearing on the issue, so it may be best to speak with an attorney about this issue.
- Specificity: Subpoenas must also be sufficiently specific in the information that is sought through the request. This means that the person receiving the subpoena will need to understand what information is being asked and how to prepare. A person can challenge a subpoena if is it insufficiently specific, yet this will likely require a hearing and an attorney may be necessary.
- Burden: This is commonly used to quash subpoenas requesting documents because it may require that the party produce a high volume of documents in a short amount of time. It can also be used to quash witness subpoenas in circumstances where the burden on the witness would be too great to force them to testify. The key phrase here is that the burden is undue, which means that the information sought will be more harmful to the party presenting it than it will be helpful for the party requesting the information.
This is a list of the most common reasons a subpoena may be quashed or limited, and every jurisdiction may have some sort of variation on these. There are also instances where there are several of these issues rolled into one subpoena, so those will need to be addressed as well. The important thing to note is that in most cases, a lawyer will need to be hired and a motion to quash the subpoena will likely need to be held. People cannot just ignore subpoenas.
The Risks of Avoiding Subpoenas:
Choosing to try and avoid a subpoena is not an easy process. The person will need to hire an attorney in most cases and will need to prepare a motion. If the motion fails, or if there are other reasons that a party may need the person to testify, they may not be excused. This can mean that all the work that the person put into fighting the subpoena was not worth it. Additionally, if a party chooses to ignore a subpoena, they can be subject to contempt of court, which can bring serious penalties. Therefore, it is important to consider the reasons that the person is resistant to the subpoena. If they only want to get out of the duty because it makes them uncomfortable, it may be worth considering other techniques to help make it easier for them. If there is a legitimate issue with the subpoena or the testimony or documents are not needed, it may be worth fighting the subpoena, especially if there is a combination of reasons to quash a subpoena. While subpoenas may be a hassle, there are instances where complying with the subpoena may be the answer to the question of how to make it easiest on the recipient.
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