There are two kinds of subpoenas. First is the subpoena ad testificandum which calls for a person to testify. The second is a subpoena duces tecum which calls for a person to testify and produce documents or things2. When only testimony is sought, the former term is shortened to subpoena, but the term subpoena duces tecum is used today to connote the extra requirement that a witness produce documents. In some situations, a subpoena may call for a person only to produce documents, with no testimony.
Subpoenas may be used in criminal or civil court proceedings. Every court jurisdiction (the 50 state court systems and the federal courts) as well as many federal, state, and local government bodies have the power to issue subpoenas. Most courts have written rules governing the use of, and responses to, subpoenas. Most of the government bodies that issue subpoenas have their own rules governing subpoenas or adopt court rules to govern their use of subpoenas. Social workers are most likely to receive subpoenas in state court or state administrative proceedings.
A subpoena requires a person who is served with the subpoena to respond either by: (1) attending a deposition to be held in the office of an attorney representing one of the parties to a proceeding to give testimony and/or produce documents, or (2) attending a court trial or hearing, or an administra-tive/legislative hearing, to give testimony and/or produce documents, or (3) producing documents to a court or administrative/legislative body, or (4) producing documents to all parties to a court or administrative proceeding.
For illustration purposes, this paper will refer to the Federal Civil and Criminal Rules of Procedure and to the Maryland Rules of Criminal or Civil Procedure. There is a great deal of uniformity among court rules, but each court jurisdiction has its own rules that govern the use of and response to subpoenas. Differences may be significant and the particular rules should be checked out in each situation.
In Maryland, the use of subpoenas in civil court proceedings is governed by Rues 2-510 and 2-403 of the rules applicable to Circuit Court proceedings and by Rules 3-510 and 2-403 of the rules applicable to District Court proceedings. In criminal proceedings in Maryland, the use of subpoenas is governed by Rules 4-264, 4-265, and 4-266 whether in Circuit Court or District Court. In the federal court system, the use of subpoenas in civil proceedings is governed by Rules 45, 26 (c), and 34 of the Federal Rules of Civil Procedure and in criminal proceedings by Rule 17 of the Rules of Criminal Procedure.
Despite the number and apparent complexity of the rules governing subpoenas, there are some general guidelines which social workers can use in making their responses to subpoenas and to the attorney who has caused the subpoenas to be served.
III. What Is The Proper Use Of Subpoenas By Attorneys?
Long ago subpoenas were issued only by a specific order of a court. This became a burden to the judges so they issued general orders that authorized the clerks of the court to issue subpoenas on request by attorneys who were admitted to practice before the court. Today, the accepted procedure is for the court clerk to issue subpoena forms, signed by the clerk, to the attorneys who in turn fill out the subpoena and cause it to be served. In effect, the courts have turned over the subpoena power and the issuing process in the first instance to the attorneys who practice before that court. This is one of the most powerful rights given to a private attorney, considering that ours is a free society with restrictions on government power. Attorneys are subject to discipline by the court if they should abuse or misuse the subpoena power that has been delegated to them.
In Maryland, the court clerk is required to issue a blank form of subpoena signed by the clerk to an attorney who may then cause it to be served on the person commanded to give testimony or produce documents. In federal court, based on amendments in 1991, the clerk is no longer required to sign the subpoena; the federal subpoena forms are simply issued in blank to be filled out and signed by the attorney.
There are opportunities for abuse of the subpoena power by attorneys lacking full knowledge of the rules governing the use of subpoenas or deliberately misusing the subpoena in order to gain advantage for their client or for themselves. The opportunities for misuse are increased when the person served with the subpoena lacks knowledge about the proper use of subpoenas and the range of appropriate responses.
A subpoena is territorial. Except for specific exceptions, a subpoena may only be served in, and have effect in, the territorial jurisdiction of the court from which the subpoena issued. For example, a subpoena issued by a Maryland state court has no effect and no power over someone served with the subpoena in Virginia.
Federal courts have the power to issue subpoenas throughout the state in which that federal court sits. In addition, a federal court has subpoena power over any person within 100 miles of the place of the trial (usually the courthouse), the deposition, the hearing, or the place of production of documents, even if that 100 mile reach extends beyond state lines. In certain kinds of federal court cases, subpoenas for witnesses may be served anywhere within the United States. See, for example, 15 U.S.C. '23 (antitrust laws) and 38 U.S.C. '445 (action on government claims).
There are other exceptions in the federal system to the territorial limitation on power of a subpoena. Federal statutes permit various federal agencies to issue subpoenas effective anywhere within the United States. See, for example, 15 U.S.C. '49 (Federal Trade Commission), 15 U.S.C. '77v(b) (Securities and Exchange Commission), (29 U.S.C. '161 (Labor Relations Board), 35 U.S.C. ' 24 (Patent Office Proceedings). A list of the State of Maryland government agencies with subpoena power appears in State Commission on Human Relations v. Baltimore County, 415 A.2d 856, 46 Md. App. 45 (1980).
In 1991, the Federal Rules were amended to grant even wider power to attorneys authorized to practice before the federal courts. An attorney may now sign and issue subpoenas for distant federal courts compelling witnesses to appear for depositions or to produce documents in distant states as long as the testimony sought and/or documents requested pertain to a pending suit in a federal court district where that attorney is authorized to practice. Federal Rule 45(a)(3). For example, an attorney authorized to practice in a federal court in Maryland and handling a federal court suit in Maryland may issue a subpoena from the federal court in Illinois and compel a witness served in Illinois to attend a deposition in Illinois (but not more than 100 miles from the place where that person resides or is employed).
A subpoena is not a one-sided affair. The subpoena power originates from a court, and a court proceeding is an adversary proceeding. Thus, a subpoena commands testimony or the production of documents for all parties and sides in a suit, not just for the one party represented by the attorney who caused the subpoena to be issued. In Maryland, Rule 2-510(a) describes the proper use of a subpoena, where all parties to a suit are entitled to be in attendance, and concludes flatly that "a subpoena shall not be used for any other purpose."
An attorney representing a party to a lawsuit may not send a subpoena to a social worker commanding production of a file only to that attorney. The social worker should make sure that whatever is produced (if anything) will also be produced to the other attorneys representing other parties in the suit. The attorney issuing the subpoena is required to set up a deposition, or have some formal process, at which or by which the witness testifies and/or produces the documents for all involved in the suit.
Too often persons receive a telephone call and/or a subpoena from an attorney and, in response, provide directly and only to that attorney the information sought, not realizing that (1) privileged information need not be turned over, (2) dissemination of confidential information can be limited by court order, and (3) whatever information is given should be given to all sides of the case.
A subpoena must be served by personal delivery. Mailing the subpoena is not enough, unless you have agreed to waive the requirement for personal delivery. Some person must come to the person to be subpoenaed and personally deliver the subpoena. In business situations, a subpoena may be accepted by a receptionist or assistant to a person as long as it is agreed at the time the service is made that the person accepting the subpoena has authority to accept important papers for this person. If there is any doubt, the basic rule should be followed, i.e., the subpoena must be delivered directly and personally.
Sometimes personal service (delivery) of a subpoena can be impractical, inconvenient, or even unpleasant. To avoid this, an attorney may call the person to be subpoenaed to work out agreeable and convenient arrangements for service of the subpoena. Most times these calls are well intentioned and are genuinely intended to save everyone time and expense while complying with the law. At times, however, such calls may be intended to gain advantage or take advantage. If an attorney seeks your consent to serving a subpoena on you by mail or by fax, it is acceptable if you agree. But you are not required to agree, you may insist on personal delivery, and it may be in your client=s best interest that the rules governing subpoenas be strictly followed. In any event, agreeing to service other than by person delivery does not lessen the other rules and requirements governing subpoenas.
There are questions of exactly when and where the testimony will take place or when the document should be produced. It is usually far better to have some communication with the attorney who caused the subpoena to be issued in order to work out a convenient date and place. In the event of a court proceeding, the attorney cannot guarantee exactly when a witness will be called to testify in court, but frequent telephone communication between the person subpoenaed and the attorney can narrow down the length of time the witness has to wait in the courthouse before testifying. If everyone is "playing hardball" in a court trial, the subpoenaed person might be required to wait around as many days as it takes until the witness is actually called to testify. A person in this situation could ask the court to help fix a reasonable schedule.
It is a somewhat complex situation as to whether and how the attorney causing the subpoena to be issued notifies the adverse attorney(s) about the issuance of the subpoena. The requirements depend on what court you are in and on whether the subpoena commands attendance at a court proceeding or at a deposition in an attorney's office. With respect to subpoenas for attendance at a court hearing, there is no requirement that the attorney issuing the subpoena give notice to the opposing attorney(s) that the subpoena has been issued. The rationale for this is that by the time of trial or court hearing, each party/attorney has prepared his/her case and decided what to do, and any witness that is subpoenaed to come to court will be present publicly in court and available for examination by the attorneys of all sides.
The federal court rules are basically the same. There is a specific provision in the federal court rules which permits an attorney to issue a subpoena to a person to only produce documents -- no testimony. Because there is no court trial or deposition at which all the parties or their attorneys would be present, the federal rules (45(b)(1)) specifically require the attorney issuing a subpoena only for the production of documents to give prior notice to the other attorneys or of any commanded production of documents and things or inspection of premises before trial.
A subpoena may not be served by a person who is a party to a lawsuit or by a person who is less than eighteen (18) years of age. This is true under both the Maryland and the federal rules.
IV. What Are The Required and Appropriate Responses by a Person Served With A Subpoena?
A person served with a subpoena may comply, or may object. The person served may ask the court to "quash" it (i.e., to eliminate it, to kill it), to limit its scope, or to regulate when, where, how, and who pays any associated costs. File a written objection with the court, showing prominently on the written objection the case name and number that appear on the subpoena, and send a copy of your objection to the attorneys in the case.
When planning your response to a subpoena, ask yourself if privileged information is involved, if confidential information is involved, if there are scheduling problems, and if you will incur expenses.
If the person served is not sure that the other parties to the court proceeding are aware of the subpoena, or if the person served wants to consult with the attorneys representing the other parties, that person can insist on proof that the other side is aware that the subpoena has been served. They can on their own initiative find out from the attorney issuing the subpoena the names of the other attorneys involved and contact those attorneys.
It is important to determine whether or not the subpoena is seeking privileged information. If it is seeking privileged information, social workers should be aware of the National Association of Social Workers (NASW) Code of Ethics. Section 1.07(j) states:
Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client's consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.
The Supreme Court of the United States has extended the long-held psychotherapist-patient privilege to licensed social workers. In Jaffe v. Redmond, 518 U.S. 1, 16 (1996), the Court held, "All agree that a psychotherapist privilege covers confidential communications made to licensed psychiatrists and psychologists. We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy."
If privileged information that should not be disclosed is sought by a subpoena, court rules permit the person served with the subpoena to ask the court to quash the subpoena. Once an objection is made and filed in writing in court, the testimony or documents sought need not be produced until a court order (other than the subpoena) ordering that the information be produced. If an objection is made with the court, then the attorney issuing the subpoena no longer has the right to insist on the information. There must be a court decision and/or resolution of the objection that has been lodged before the testimony is given or the documents produced.
This procedure permitting the person served to ask the court to quash the subpoena applies equally to a subpoena issued for a court appearance, to a subpoena issued for appearance at a deposition in an attorney's office, and to a subpoena that simply requires production of documents/records.
How does a person served with a subpoena lodge an objection with the court? The best way is to have an attorney familiar with court proceedings to file a motion to quash or to otherwise seek the aid and protection of the court. This can cause expense for the person served. A letter from the person served with the subpoena to the court, with a copy to the attorneys in the case, setting forth the facts and the grounds for the objection, should at least give the person a basis to tell the attorney that he/she will not respond to the subpoena without a court order. With respect to a subpoena commanding you to attend a court trial or hearing, you may lodge your objection (either through an attorney or through a letter to the court), but you should nonetheless come to court on the date specified in the subpoena and tell the judge yourself why you think you should not give the information sought by the subpoena.
The person served with a subpoena can lodge an objection to the place that he or she has been commanded to appear, or to the date and time, or to the expenses involved with respect to attending or producing documents. If any aspect of compliance with the subpoena is burdensome, the person served with the subpoena can lodge an objection in court and the attorney is required to obtain a court order.
Under the Federal Rules, the attorney responsible for the issuance and service of the subpoena is under an obligation to take steps to avoid imposing undue burdens and expense on the person served with a subpoena. If that attorney fails to do so, and the person served with the subpoena is required to go to court to seek protection, the court may grant that protection and go further and require the attorney who caused the subpoena to be issued to pay to the person subpoenaed "lost earnings and a reasonable attorney's fee." Rule 45(c)(1).
There are specific time limits within which an objection to a subpoena must be filed with the court. In Maryland, a person objecting to a subpoena must move "promptly" if a court trial or hearing is involved or within ten (10) days after service in the case of attendance at a deposition. In federal court, the person must move "promptly" with respect to court hearings and within fourteen (14) days with respect to a deposition or document production.
If you have an objection based on privilege or the need to protect the confidentiality of certain information, when you file your objection you should expressly state the privilege and/or the reasons confidentiality is needed. Support your objection by a description of the nature of the documents or testimony that you believe are privileged. Your objection should be sufficiently detailed so that the court reviewing your objection can understand the reasons for your objection and the nature of the information that you think should not be produced.
It is never wise to ignore a subpoena. Failure to respond to a subpoena may be deemed contempt of court and can carry severe penalties. Some state courts provide that a witness who fails to obey a subpoena may then be subject to a "writ of attachment" executed by the sheriff. This allows the sheriff to arrest the person subpoenaed and bring that person before a judicial officer of the court for a determination as to what conditions should be imposed on that person to make sure that he/she appears as required by the subpoena.
