In a lawsuit, the way information is produced or documents received from the other party is through the discovery process under the rules of Civil Procedure. The parties in a lawsuit have to answer to a judge if they fail to obey these procedures. However, in most cases, a third party, who is not either the plaintiff or defendant in the lawsuit, has some important information related to the case. Since those parties are not in the lawsuit, the judge has no inherent power, or jurisdiction over him to force him to comply with even reasonable requests for information. The way the parties get information, documents or testimony from someone not involved is through a subpoena.
Rule 45 of the North Carolina Rules of Civil Procedure governs the use of subpoenas by parties. A subpoena can be issued by the clerk of court, or by a judge or magistrate. Even the attorney for the party demanding the information, documents or testimony, as an officer of the court, can issue a subpoena. So there is no hearing or discussion as to what it is that the party wants, or why they should have it, before a subpoena is issued. A subpoena must then be served on the person. It can be served in person by the sheriff, a deputy, coroner, or any non-party who is over 18. The subpoena can also be served by certified mail, return receipt requested. Finally, a sheriff can serve a subpoena for the attendance of a witness by telephone. Therefore, trying to get out of testifying or producing documents by avoiding a subpoena is usually just a stalling tactic. Chances are, eventually you’ll get served.
So you’ve gotten a subpoena from the sheriff or mail or another proper method. What do you do? First carefully read the subpoena. It is required to provide you with information regarding the lawsuit, including the title of the action, the name of the court, the name of the issuing person, and the name of the party who is asking for compliance with the subpoena. Note that there must be a lawsuit before a subpoena can be issued. If there is no lawsuit, even if there is a claim or controversy, a party cannot have a subpoena issued. The subpoena should also have date, time and location for the person to show up and testify and/or produce documents that the subpoena lists.
Second, once you understand what the subpoena is demanding, you can make a decision on how to respond. If the subpoena is for your appearance at a deposition and or to produce and permit copying of documents you can serve (in this case U.S. mail or hand-delivery) to the other party or attorney objections to the subpoena. The party issuing the subpoena then has to schedule a hearing before a judge, with notice to you, regarding your objections and to compel you to obey the subpoena. Alternatively for depositions and/or production of documents and for trial attendance, you can move to quash the subpoena and go straight to a hearing before the court. Either way, if you have issues with the subpoena, you can be heard before a judge. You must make your objections or motion to quash 10 days after you were served or before the date of compliance if you were served with less than 10 days notice.
However, you are not allowed to object to a subpoena for any reason. The allowable objections are 1) there is not reasonable time for compliance, 2) there is privileged or protected information that is being requested, 3) subjects you to undue burden or expense, 4) it is unreasonable or oppressive or 5) the procedure was not followed (issuance and service).
A reasonable time for compliance is different depending on what is being asked. 10 days may be more than enough notice to testify at a deposition, but would not be reasonable if it asks for years and reams of documents. “Privileged information” means a recognized privilege of confidentiality in North Carolina, such as communications between a person and their lawyer (attorney/client privilege). The court will also consider trade secrets or other types of confidential information in balance with the purpose for the production and whether or not the information needed can be gained by other means. The court can modify a subpoena and issue limitations or protective orders on documents provided, to address the concerns of a person regarding confidential information. Similarly, a court can address things such as scheduling, locations, travel expenses, or a multitude of other concerns that a person may have that would fall under one of the 5 objections. Only seldom does a court come across an objection that cannot be alleviated to address the person’s legitimate concerns while still providing needed information or testimony to the issuing person.
If your only objections are time and place and the amount of documents you have to bring, the best practice would be to call the attorney who issued the subpoena. Usually they will work with you to get your testimony or documents with the least amount of trouble to you that they can. If the subpoena is for trial testimony, it will usually require you to be present in court on the first day of trial. However, most attorneys if you agree to cooperate, will try and fit you into the trial as best they can and will have you on telephone standby for your attendance. If there are trade secrets or privilege or if the documents themselves may hurt you in some way, you should consult with an attorney.
What you should not do is fail to respond. A judge can order you to produce and then fine you for contempt of court if you continue to fail to respond. I’ve had a judge in a trial send the deputy to a subpoenaed witness’s house and bring him to the courtroom. Continuing refusal to obey as subpoena will eventually subject you to monetary sanctions from the court and even jail time.
--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation. Please contact him at (910) 772-1678.