What’s a “Subpoena”?
A subpoena is a formal document commanding a person or an entity to either appear at a location and give testimony (a witness subpoena) or to produce documents identified within the subpoena (a subpoena duces tecum). A subpoena is issued in relation to an ongoing litigation matter and is most often sent by an attorney, but the court may also issue the subpoena in certain circumstances, most often when the person does not have legal representation. Subpoenas can be issued in both civil and criminal matters; however, this article only addresses civil matters.
Failure to comply with a subpoena can expose a person to serious consequences, including contempt of court or attorneys’ fees. However, just because you receive a subpoena does not mean you should open all your files to the requesting party. There are both procedural (improper service, issuing out of wrong court) and substantive (undue burden) grounds under which you can and, in some instances, should object to a subpoena. The items listed in this article are not exhaustive and each subpoena may be objectionable on a ground that is not covered below. If you receive a subpoena and have questions about its validity or what you are required to do in response, you should consult an attorney.
What objections can you make to a subpoena?
Upon receiving a subpoena you should first check to see whether it pertains to a federal or state proceeding, as there are important differences in each that may make a subpoena invalid on its face.
For a federal subpoena to be valid it:
Must be issued from the district court where the production is to be made or the testimony is to be given. (Fed. Rule Civ. Pro. 45(a)(2)(A) – (C)). For example a party cannot issue a subpoena out of the Western District of Virginia that requires the production to be made in the Eastern District of Virginia. (See Doe I. v. Walnuts, 2008 U.S. Dist. LEXIS 70986 (W.D. Va. Sept. 19, 2008); and it
Must be served either within the district court of the issuing court or outside of the district but within 100 miles of the specified place of production. (Fed. Rule Civ. Pro. 45(b)(2)(A) – (D)). For example, a party to a lawsuit in the Eastern District of Virginia may issue a subpoena to someone in Washington, D.C. for production within this District. However, as indicated in the first point, a party cannot issue a subpoena out of the Eastern District of Virginia that requires production to be made in Washington, D.C.
In Virginia, a subpoena is issued out of the court in which the litigation is pending and may be served anywhere within the borders of Virginia. (Va. Supreme Court Rule 4:9A(a)). For a deposition testimony, the deposition must be taken where the non-party lives, has a place of business or a place which the parties agree upon. (Va. Supreme Court Rule 4:5(a1)(ii)).
Additionally, when serving a corporation in Virginia in either a federal or state matter, the service must be made personally on either a registered agent or officer of the corporation, otherwise it’s invalid. (Va. Code Ann. § 8.01-299). Federal Rules also allow for service to be made in accordance with state laws. (Fed. Rule Civ. Pro. 4(h)). However, since Virginia requires personal service on a registered agent or officer, that is the only manner of serving a corporation in Virginia. A party receiving a subpoena in another state should consult the state laws.
A subpoena may be issued and served properly but still be objectionable based on any number of substantive grounds, including the following:
Inadequate time to comply (Fed. Rule Civ. Pro. 45(c)(3)(i));
Excessive travel (more than 100 miles for federal subpoenas) (Fed. Rule Civ. Pro. 45(c)(3)(ii)), outside the county where the party resides or has a principal place of business for Virginia depositions;
Requests privileged or otherwise protected information (trade secret, commercial information, etc.); (Fed. Rule Civ. Pro. 45(c)(3)(iii) Va. Supreme Court Rule 4:1(c));
Undue burden (overbroad) (Fed. Rule Civ. Pro. 45(c)(3)(iv), Va. Supreme Court Rule 4:9A(c)(3)(1)); and
Undue expense (a party should always consider requesting to be reimbursed for its reasonable expenses) (Va. Supreme Court Rule 4:9A(c)(3)(1) and (2)).
Whether a subpoena is objectionable will depend on the information sought and the facts at issue in the underlying litigation. When in doubt, you should contact an attorney.
In a Federal matter, you must serve written objections on the party or the attorney issuing the subpoena before the time indicated in the subpoena for production or 14 days. (Fed. Rule Civ. Pro. 45(c)(2)(B)). Failure to object within this time frame may waive any objections to the subpoena.
In Virginia, an objection must be made upon a “prompt written motion.” (Va. Supreme Court Rule 4:9A(c)(3)). There is no bright-line rule for what constitutes “prompt.” It is advisable to follow the federal rules and object within 14 days or before the identified time for production.
In the majority of cases, the parties can reach an agreement regarding the scope of the subpoena that is reasonable for both parties. However, some circumstances will require that either the party requesting the production seek a motion to compel or the party being subpoenaed file a motion to quash or a motion for protective order. It is imperative to make a good faith effort to resolve the matter with the person issuing the subpoena prior to filing any motions. (Va. Supreme Court Rule 4:9A(c)(4)).
Failure to Comply with a Subpoena.
If a non-party fails or refuses to comply with a subpoena, it may be held in contempt of court and subject to monetary sanctions. (Fed. Rule Civ. Pro. 45(e)), Va. Supreme Court Rule 4:9A(g)). Therefore, it is essential that you act quickly upon receiving a subpoena so that you do not waive any objections, and do not subject yourself to significant financial or other burdens.
Rachelle E. Hill is an associate at Bean, Kinney & Korman, P.C. in Arlington, Virginia, practicing in the litigation, with an emphasis on commercial litigation and employment law. She can be reached at 703.525.4000 or firstname.lastname@example.org.