What is a subpoena, and what does it mean for you?
The details of what happens next will depend on the court order you received. But, there are general expectations to help you organize a well-informed response.
Once you have read this guide, you will have the knowledge and resources anyone needs to deal with a court subpoena. Moreover, we can even set you up with a highly qualified attorney to lead you toward legally-sound decisions.
What Is a Subpoena?
A subpoena is an order from a court or legislative body that demands testimony or records. It’s important to note that a subpoena is different than a summons. Accordingly, the subpoena document you receive will have a date for you to appear or a deadline to submit information. In some circumstances, it may also inform someone that they have to allow an investigation of their property.
Deposition Subpoena (subpoena duces tecum)
A subpoena duces tecum is an order to appear at a court date with a list of requested records. Some examples of the documentation you will have to provide are:
- Medical records
- Billing statements
- Memos, texts, and emails
- Client or patient files
Trial Subpoena (subpoena ad testificandum)
A subpoena ad testificandum is an order to attend a court session and give testimony under oath. This demand can apply to a hearing or trial.
Typically, your attendance will be part of the pre-trial or discovery phase. Depending on the situation, you may become subpoenaed to court as one of the following:
- Lay witness
- Character witness
- Expert witness
How Should You Respond to a Subpoena as an Individual?
Once you receive a subpoena, you have to understand the breadth of obligations ordered by the judge. The potential next steps outlined below are only general guidelines for you to consider. But, discuss any questions about your responsibilities or potential risks with an attorney.
Do Not Ignore It and Prepare a Response
Ignoring a court order is not an option, especially if you are trying to stay out of trouble. The document you received arrives with the full weight of the law behind it, and there are a few valid reasons to get out of a subpoena.
Moreover, failing to comply will result in a criminal or civil contempt charge. The responses that are available to you include the following:
- Organize a thorough response
- Communicate with the investigating agents to clarify the scope of the subpoena
- Discuss the requested details to see if you can reduce the range of topics
- File a motion with the court to quash the subpoena
- Review the information demanded of you for anything privileged or self-incriminating
Gather and Protect Documentation
The first step most recipients of a subpoena should take is to collect everything listed in the court order. Ensuring that you complete this task is critical to proving compliance. Consequently, securing and protecting them from prying eyes is also in your best interest.
But, it is arguably even more vital to have them to share with your legal counsel. They have the experience necessary to help you identify what may incriminate yourself. At the end of the day, you may have the right to exercise the fifth amendment.
How Should You Respond to a Subpoena as a Business?
A subpoena to a business or non-profit organization may require the involvement of multiple parties. As a result, a more organized response in conjunction with legal counsel is a wise course of action. The following sections provide a guide for how to get started.
Notify Top Executives
Even if one individual is the target of the subpoena, the executive team needs to know what has happened. This list of contacts should also include board members of the organization. Furthermore, a publicly traded company may have a requirement to disclose details to the shareholders.
The subpoena’s scope will mean employees have to gather documents. Any perception that these records became destroyed or withheld is evidence of the obstruction of justice. The mere perception of this impropriety can be bad news for everyone involved.
Advise Employees and Offer Access to Counsel
It is typical for investigating agents to interview employees shortly after the delivery of a subpoena. Therefore, it is the organization’s responsibility to prepare them for this event. In addition, it would be wise to inform them that any retaliation in the workplace for their participation is unacceptable.
First, you must emphasize that they need to provide clear and honest answers to questions. You don’t want to leave any ambiguity about company policy to cooperate with investigations. Moreover, team members need access to legal counsel to prepare.
Look at Your Insurance Policy Requirements
Insurance companies consider a subpoena to be a triggering event. This status means your insurer needs to receive notification of what the company has to produce for the court. Not completing this task will likely end with a refusal to give compensation, or a denial of a claim, for litigation or investigation costs.
Identify Privileged Material to Defend
The unambiguous and sometimes forceful language in a subpoena can make you feel that everything requested must go. However, the possibility exists that some privileged information does not have to go to the investigating agents.
Corporate lawyers often show extraordinary value at times like these. Ideally, you will identify what the court has no business obtaining before the deadline. Once sent, getting your records back can involve some heavy legal lifting.
Talk to a Highly Qualified Attorney About a Subpoena
Answering “What is a subpoena” is likely to raise even more questions than before you started. If you or your organization need answers, we can connect you with a local lawyer ready to help. Send us a request through our website or call (866) 345-6784 to get the legal counsel you deserve.