LEGAL GUIDE
Written by attorney Rebecca B. Phalen | Jan 14, 2011

What's a nonparty to do when served with a subpoena for deposition or documents?

When you are not a party to the lawsuit, the last thing you expect is to be served with a subpoena. Although dread may be your first reaction, know that a subpoena served on you can be enforceable in a court, including by fines or arrest.

What is a subpoena?

A subpoena is a document that commands your presence for testimony—it can be for a trial, a deposition, or a request to produce documents. In this legal guide, we are discussing subpoenas issued in civil cases for depositions or documents. Subpoenas issue from state or federal courts, and can be signed—depending on the jurisdiction—by the court clerk or an attorney. Subpoenas may be directed to your personally or to you in an official capacity regarding your company. They can even be issued and enforced for cases that are outside your state.

For an example of what a subpoena looks like, you can see a federal court subpoena form here (http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO088A.pdf) and a Georgia subpoena form here (http://www.fcclk.org/ccnew/forms/Civilforms/SUBPOENA_FOR_DISPOSITION_FillinForm.pdf). Your subpoena may not look exactly like these, but they can still be enforceable. Your subpoena may also have a list of requested documents attached.

How can a subpoena be served?

A subpoena must be properly served on the witness before a court can enforce it. Proper service will vary by state and the rules are different for federal and state subpoenas. A witness and mileage fee check may be required before the subpoena is valid. But the method of delivery to you is also critical. In the federal court for the Northern District of Georgia, the subpoena must be personally served on you.

In Georgia there are three ways the party seeking your testimony can serve the subpoena:

  • Personal service, where the subpoena is handed to you by a process server or sheriff;
  • Registered or certified mail; or
  • Overnight delivery using a commercial firm, like UPS or Federal Express, with a signature requirement (“statutory overnight delivery").

What should I do when I receive a subpoena?

No matter how you receive a subpoena, don't ignore it. Although a subpoena must be properly served before it can be enforced, the party seeking your testimony or documents can easily cure that defect, so you should still pay attention. Here is what to look for as you read the subpoena:

  1. Is the subpoena for testimony or documents or both?
  2. What documents does it request?
  3. What date is asking you to comply by?
  4. Where are you asked to go?
  5. Do you know what the case is about?

Thinking about these questions will help you decide whether you can and want to comply. There may be concerns that you have—whether you can’t attend the deposition on the date requested, it is too costly to gather the documents, or the documents contain confidential information.

What response can I make to the subpoena?

There are a range of responses. You can certainly comply without any objection. But you are also entitled to not be unreasonably burdened by the subpoena.

Some of your concerns may be resolved by negotiating and talking to the attorneys involved in this case. But remember that they don’t represent you and cannot give you legal advice; they are looking out for their clients' best interests, not yours.They are also not required to keep your conversation confidential.

While negotiating may get the results you want, don't wait too long before assessing any formal objections you should make. In some jurisdictions, including Georgia, you may be required to make objections in writing and often there is a time period in which you must make those objections or they could be waived and you'll lose the opportunity to raise them. You may also want to file a motion for protective order with the court to have the court decide whether your objections are valid.

Do I need an attorney?

Hiring an attorney can help you decide your best response to a subpoena. Yes, hiring an attorney is an additional cost, but it could save you money in the long-term and it can ease your mind in the short-term. To get a handle on the costs, be sure to get an estimate before you retain the attorney.

Once you hire an attorney, the attorney can determine whether it is a valid subpoena, including whether it was properly served. You can also confidentially discuss your concerns with the attorney. From that discussion, the attorney can let you know whether you have reasonable objections to bring to the court's attention. The attorney can then help you negotiate the terms of the subpoena. And if your concerns aren’t resolved with negotiation, then the attorney can draft, file, and serve the papers necessary to bring your objections to the court.

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