What is a Subpoena and What Should I Do If My Business Receives One?
What is a Subpoena and What Should I do If You or Your Business Receives One?
It is not uncommon for businesses of all sizes to be served with a subpoena to produce records or to provide testimony in a legal matter. This post will provide a general overview of the subpoena process and what your business should do in response to one.
What is a Subpoena?
A subpoena is a document that orders a named individual or representative of a business to personally appear at a trial, deposition, or hearing to: 1) give testimony (known as a Subpoena Ad Testificandum) or 2) to produce documents or objects to be used at a trial or hearing as evidence (known as a Subpoena Duces Tecum).
In New Jersey, Court Rule 1:9 governs the issuance of subpoenas. Court Rule 1:9-1 specifically states that “a subpoena may be issued by the clerk of the court or by an attorney or party in the name of the clerk.” This means that it is acceptable for an attorney or party in an action to generate a subpoena and sign it in the name of the clerk, without having to submit the subpoena to the Superior Court Clerk’s Office for signature by the clerk.
What Must a Subpoena Include?
A subpoena must state the court in which it was issued, as well as the legal action and case number. It also must specify a date, time, and place the witness must appear or when they must produce documents by. If documents are requested, the subpoena must include a description of the documents being requested. In addition, a subpoena must include language indicating that it is from a “court proceeding” and that it “requires the presence of the person subpoenaed or the production of designated books, papers, documents or tangible things.”
In New Jersey, it should also include language that states that the party receiving the subpoena should not produce the documents until the due date stated on the subpoena and that if that person is notified that a motion to quash the subpoena has been filed, he or she should not produce or release the subpoenaed evidence until ordered by the court or the release is consented to by all parties to the action.
A subpoena should never be ignored even if you do not believe that you have any information that is responsive to the requests.
Notice of a Subpoena
When an attorney prepares a Subpoena, he or she must simultaneously serve it on the witness and all parties. The attorney must provide at least 10 days notice before the date of the deposition or date to produce documents.
How is a Subpoena Served?
A subpoena can be served by anyone 18 years or older. When it is served, the person serving the subpoena will provide a copy of it to the person named, along with any fee required by law. In most instances, a subpoena will be served by a process server. A process server.
After the process server provides you with the subpoena, he will prepare an Affidavit of Service, which is provided to the attorney who prepared the subpoena. The Affidavit of service tells the attorney and the Court that the party being subpoenaed received the document and should now be aware of his obligations to comply.
In New Jersey, a subpoena that seeks only the production of documents or records may be served by registered, certified, or ordinary mail and, if served in that manner, shall be enforceable if the party receiving it signs an acknowledgment and waiver of personal service. However, it is more common to receive a subpoena from a process server than through the mail.
What is a Motion to Quash a Subpoena?
A motion to quash a subpoena is a request to the Court to stop or prevent the witness from being forced to appear, produce documents, or answer questions. The motion can be made if compliance is burdensome or will cause an undue invasion of privacy. If the subpoena requests privileged documents, they cannot be disclosed absent an order by the court allowing their disclosure due to hardship.
Sometimes, in response to a Motion to Quash a Subpoena, the Court may request that the documents be produced to the Court for an "in camera" inspection. This means that before the documents are provided to either party, the Court will determine which documents if any, must be produced.
What Should I Do if My Business is Served with a Subpoena?
If you or your business is served with a subpoena, the best thing to do is to contact an attorney as soon as possible. You should also review the subpoena to see what information you are being asked to produce and add the due date to your calendar. Your attorney will be able to determine how to respond to the subpoena, either by directing you to provide the information, by limiting what you produce or by filing a Motion to Quash.
What Are the Consequences if I Ignore a Subpoena?
You should never ignore a subpoena even if you do not believe that you have any information responsive to the requests. The consequences of ignoring a subpoena can be significant. For example, if you ignore a subpoena and do not provide the information requested, the person who issued the subpoena may file a Motion to Compel. If that happens, you will be required to appear in Court so the attorney can inquire as to why you failed to produce documents or attend a deposition. You may also be liable for attorney fees and costs.
Additionally, New Jersey Court Rule 1:9-5 states that failure to comply with a subpoena without adequate excuse may be deemed a contempt of the Court from which the subpoena was issued. In rare instances, if the Court holds a person in contempt the judge can order that the non-compliant person be imprisoned.
If you or your business receives a subpoena you must take immediate action to have it reviewed by an attorney as failing to respond to the subpoena can result in significant consequences.
You can read New Jersey's Subpoena Rules 1:9-5 through 1:9-7 here: https://www.njcourts.gov/attorneys/assets/rules/r1-9.pdf?c=aG1
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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey you should immediately seek the advice of an attorney in your state as certain rules differ in other states.