You Received a Subpoena, Now What?
March 26, 2018
If you received a subpoena, the good news is that you haven’t been sued.1 The bad news is that you can’t ignore it.
A subpoena is a legal document instructing you to: (1) testify at a trial, hearing, or deposition; (2) produce documents, electronically stored information, or tangible items; or (3) both testify and produce documents.
In Ohio, subpoenas are designed to limit your burden and expense. For instance, subpoenas compelling testimony are limited to trials or hearings within Ohio. Similarly, subpoenas requesting documents cannot compel in-person appearance to produce those documents. Despite these limitations, responding to or complying with a subpoena may require substantial time and resources, but you have options.
- Comply With the Subpoena: Obviously, you can fully comply with the subpoena without taking any other action. For instance, if the subpoena requests few documents, compliance may be the best option.
- Contact the Issuing Party: More often than not, subpoenas appear unexpectedly, without prior communications between the issuer and the recipient. Contacting the party issuing the subpoena is an easy way to resolve many issues informally and inexpensively. At the time the subpoena is issued, the issuing party doesn’t know what you may or may not have in your possession, so the requests may be quite broad. A conversation on the front end better informs the issuing party of the availability and unviability of certain documents that can lead to a quicker resolution. In many instances, the issuing party is agreeable to some modifications of the subpoena.
- Send Written Objections: If the subpoena requests the production of documents or electronically stored information, you may send written objections to the issuing party specifying why you object to the subpoena, or why you will not provide documents or electronically stored information. You must send your written objections before the deadline for compliance set by the subpoena, or within 14 days after you received the subpoena (whichever is shorter). However, your written objections don’t automatically end your obligations; they may only temporarily suspend them. After you submit your written objections, the party issuing the subpoena may either: (1) do nothing (in which case your obligations end), or (2) it may ask the court to compel you to produce the documents it seeks (in which case you will have to produce them).
- File a Motion to Quash/Modify: Another option is to file a motion with the court where the subpoena originated, requesting the court either modify the subpoena (perhaps by narrowing its scope, thus lowering your costs) or quash (void) the subpoena entirely. Courts grant motions to quash or modify only in limited circumstances, and filing a motion with a court may be more costly than complying with the subpoena.
Although there are numerous methods to responding to a subpoena, doing nothing is not among them. Failure to obey a subpoena without a legitimate excuse may result in contempt of court charges. Additionally, frivolously resisting a subpoena may lead to the court ordering you to pay expenses, including attorneys’ fees, to the issuing party for their trouble in obtaining your testimony or documents. This doesn’t mean there aren’t legitimate times to defy a subpoena, but it does mean that the decision to comply or resist requiresa careful weighing of factors such as costs, resources, time, the likelihood of success on a motion, etc. Whatever option you choose, you should consult an attorney to avoid any pitfalls.
1 In Ohio, subpoenas may obtain documents and testimony only from someone who is not a party to the lawsuit. Other jurisdictions differ, including federal courts, so be sure to check from which court your subpoena came.