What to Do If You Are Served With a Subpoena

December 12, 2013

If you are served with legal papers it is important to determine what type of papers you received. Are you being sued or are you being called to court or a deposition as a witness. It is worth a call to a litigation attorney to help you determine what steps to take so that you do not find yourself embroiled in someone else's lawsuit.

What Is a Subpoena?

Thumbnail image for dreamstimeextrasmall_26645051.jpgFirst you must determine if you have been served with a summons or a subpoena. If you have been served with a summons it means you are being sued. Click on this link to see an example of a summons. A subpoena is a document that requires the attendance of a witness or the production of documents at a deposition, trial or hearing. Subpoenas can be served on parties and non-parties to a lawsuit or criminal case. An example of a subpoena can be seen by clicking on this link.

Types of Subpoenas

There are two main categories of subpoenas: deposition subpoenas and trial subpoenas. A deposition subpoena requires attendance and/or the production of documents or other things at a deposition. A deposition subpoena is necessary to compel a non-party witness to appear and give testimony or produce documents at a deposition. Subpoenas are not required to compel someone who is a party to an action to appear.

What Must You Do When You Receive a Subpoena?

A subpoena can require three things: attendance only, production of documents and attendance or production of documents only. A subpoena that commands attendance requires a person to attend and testify at a specific time and place. A subpoena that commands production of things requires a person to produce documents, records or the like, at a specific time and place. A subpoena that commands both, attendance and production, requires a person to appear, testify and produce documents at a specified place and time. It is very important that you do not produce documents early because you may interfere with the rights of others to stop the subpoena and seek what is called a protective order.

Who and What Can Be Subpoenaed?

Any person, including a corporation or limited liability company, that is a resident of California can be subpoenaed. For the purposes of a subpoena, residence only requires the witness to live or do business in California. If the witness is an organization, the most qualified person to testify on the organization's behalf must appear. The witness is entitled to witness fees and mileage.

A trial subpoena can compel attendance and/or the production of documents or other things at a trial, hearing or any other non-deposition matter, such as arbitration. A trial subpoena can compel a party or non-party witness to attend or produce documents, however, a "notice to attend" usually compels a party witness to attend trials and/or hearings.

Any existing document or other item can be subpoenaed for production. Thus, a subpoena cannot require a person to create a document. Additionally, a subpoena must adequately describe the documents and things sought. This can include notes, calenders, computers, digital files, emails and even objects such as machinery, clothing or medication bottles. It is sufficient if the category of documents sought to be produced are described with "reasonable particularity" and if the "person most knowledgeable" is listed as the one having custody and control. (See California Code of Civil Procedure section 2020.510.)

Time For Compliance

The date, time and place for compliance must be listed on the subpoena. If the subpoena is a deposition subpoena and there is a request for documents, a deposition officer must be appointed to receive the documents. As noted above, documents should never be produced prior to the time stated for compliance. An attorney may object to the subpoena for many reasons, including restrictions under privacy laws, and if the objection is sustained and the documents are ordered by the court to not be produced, a witness who released the documents prematurely may be liable. Thus, if the witness is served with written objections or a motion to quash, the witness must hold off producing the documents until a court order or an agreement between the parties allowing release of the documents has been served.

Absent any objections or motions to quash, once the time for compliance commences, the witness must testify or produce the documents at the stated place and time. Whenever a witness produces documents, the witness should take any and all reasonable precautions to redact any private information on the documents, such as blacking out social security numbers.

If you receive a subpoena it is important to discuss this with an lawyer who is knowledgeable about civil litigation to make sure you are properly complying with the subpoena. If you had any involvement in the matter it may also be important to have an attorney of your own represent you at a deposition to make sure you are not dragged into someone else's litigation and your rights are protected.

Adina Stern has been handling litigation matters and has assisted litigants and witnesses for 30 years in and around Los Angeles County, Orange County, Riverside County, Ventura County, San Bernardino County and San Diego County including Aliso Viejo, Beverly Hills, Burbank, Calabasas, Chino, Coto de Caza, Long Beach, Malibu, Mission Viejo, Moorpark, Newport Beach, Palos Verdes, San Diego, Simi Valley, Studio City, West Hollywood, and Westwood Village.