Monday, September 12, 2022

Responding to a Subpoena

    A subpoena is a court pleading amounting to an order to show up and/or produce documents (called a subpoena duces tecum, or SDT) or other materials.  It can be issued (by a judge, lawyer or court clerk) in a civil, criminal or administrative case or proceeding.  In Colorado (and federal court) civil procedure rule 45 governs subpoenas.  In criminal cases it is rule 17. 

    Failure to comply can result in contempt of court (some jail in really bad situations).  But "compliance" can cause problems too, like waiving confidences and privileges (HIPAA is one example) or unnecessarily and unwisely giving over information.  It is best to check with a lawyer before proceeding, as he or she will (should) among other things -

  1.  Make sure the subpoena properly was served.  Improperly served subpoenas generally are not enforceable.

  2.  Make sure the subpoena is not unreasonable, too broad, harassing, unduly burdensome or otherwise oppressive.

  3.  Coordinate compliance as necessary, i.e., where and when to turn over any documents ahead of time so as to avoid having to show up in court, protecting confidences, asserting privileges etc.

  4.  Negotiate with the other side and other interested persons or agencies to clarify or limit the subpoena if advisable.

  5.  Move to quash (you squash a bug, but quash a subpoena), that is, file a written motion in the relevant court asking to cancel or limit the subpoena ahead of its return date/time.

    Subpoenas can be little problems that turn into big ones.  Minimize problems by dealing with the subpoena including notifying your attorney as soon as possible.

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