In a previous article, we explored what it means to be served with a summons and complaint, including the responsibilities of a defendant recently served.
In this post we will discuss what it means to be served with a subpoena and what your obligations are if you are on the receiving end of one.
There are two types of subpoenas, a subpoena ad testificandum and a subpoena duces tecum. Subpoena ad testificandum is Latin for “to testify under penalty,” and subpoena duces tecum means “bring with you under penalty of punishment.” Thus, a subpoena ad testificandum is an order compelling you to appear and provide testimony or face a penalty, and a subpoena duces tecum is an order compelling you to provide documents and other records or face a penalty.
The purpose of a subpoena is to allow parties to a lawsuit to be able to gather information that will be helpful to providing their case or defending it. It gives parties to a lawsuit power to collect evidence that they would not have if they were not in a lawsuit. For example, a party may want records of text messages sent by the opposing party. With a subpoena, they can compel the cell phone service provider to turn over those messages so they can be used as evidence in court.
The Nevada and Federal Rules of Civil Procedure set forth the rules regarding subpoenas. For a subpoena to have power, it must be served in accords with the rules, which typically requires personal service by a nonparty at least eighteen years of age, much like summons and a complaint must be served. The subpoena must also advise you of your rights in responding (discussed below).
Someone who has been subpoenaed who does not respond can be subjected to a penalty, as the name subpoena implies. The penalty comes in the form of being found in contempt, which most commonly requires the disobedient party to be incarcerated until such time as it obeys the court order.
Subpoenas Duces Tecum
Subpoenas duces tecum require the subpoenaed party to disclose documents and records in their possession. This is ordinarily done by setting a time when the subpoenaed party must show up with the records and present for a deposition (transcribed sworn testimony). In most cases, the subpoena will excuse the party’s attendance for deposition if the records are timely produced. In most cases, the party’s presence is not necessary.
However, because the documents must be authenticated (i.e. proven to be what they purport to be) before they are admissible at trial, if the subpoenaing party elects to excuse the subpoenaed party from appearing, it will often require the subpoenaed party to fill out an affidavit attesting to the authenticity of the documents produced.
The party producing documents must also turn over the documents “as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.” In other words, a party cannot make copies of all its documents and then shuffle them all and unorganized them.
The subpoenaed party does have a right to be reimbursed for reasonable expenses associated with the production of documents, including reasonable copying fees. The amount of these fees is subject to court discretion. In the case of medical records, for example the most a medical facility can charge for copies in Nevada is $.60 per page.
Subpoenas ad Testificandum
Unlike subpoenas for the production of documents, subpoenas ad testificandum are aimed at getting testimonial, rather than documentary, evidence. A subpoena ad testificandum is a way of compelling someone to be a witness in your case either during the discovery period (a deposition) or at trial (trial testimony).
When a witness is ordered to appear to testify via subpoena, the subpoenaing party must reimburse the witness for travel and provide a daily witness fee. If the case is in federal court, the fee is $40 per day plus actual travel costs, or if using a private vehicle, a rate of $.56 per mile (as of the writing of this article). In state court, the daily witness fee is $25, and the mileage rate is the same.
Challenging a Subpoena
Although subpoenas provide broad authority for a party to gather evidence, this authority is not without its limits. There are several protections that are afforded to subpoenaed parties (notice of which must be included in the language of the subpoena).
A court must quash (or disallow) a subpoena where it
- fails to allow a reasonable time to comply (which usually means at least 15 days);
- requires a person who is not a party or an officer of a party to travel more than 100 miles (within certain exceptions and limitations);
- requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
- subjects a person to undue burden.
Additionally, a court may quash a subpoena if it asks the subpoenaed party to
- disclose a trade secret or other confidential research, development, or commercial information; or
- disclose an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party.
If you have been served with a subpoena and are not sure to what extent you need to respond, consult with an attorney familiar with the subpoena process to be sure you are afforded maximum protection.
Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or firstname.lastname@example.org.