What Should I do if I get a Subpeona?

I. General Information:

1. What is a “subpoena”?

Although typically filled out by an attorney, a subpoena is an official request issued from a court. A judge may find an individual in contempt of court for not complying with a subpoena. A subpoena is binding if:

i. the subpoenaed individual receives proper personal service and

ii. there are no objections or reasonable excuses not to comply with the request and

iii. the subpoena is issued under authority of a court or agency with statutory authority to issue subpoenas to persons in Pennsylvania.

2. What can be requested in a subpoena?

A subpoena may require the individual to do any or all of the following:

a. Testify at a trial, hearing, or other judicial proceeding;

b. Produce records including papers, books, or other physical items, or stored electronic information including email, files, activity logs, and data;

c. Appear at a deposition for questioning before trial and /or produce documents at the deposition.

3. What grounds are there to block a subpoena?

A person may object to a subpoena and asked that it be quashed by a judge. A “motion to quash” is a request that a judge nullify or cancel the subpoena. Typically your lawyer will negotiate with the attorney who issued the subpoena if it is unduly burdensome or otherwise objectionable.

Important grounds for opposing a subpoena include:

a. Privileged or confidential information – If the request is for student records (see Family Educational Rights and Privacy Act), medical records, personnel files*, counselor-student communications, attorney-client communications, confidential research, or other protected materials, the subpoena may be quashed or may be subject to a protective order.

b. The subpoena is too vague – If the subpoena is so vague or global as to what records it requests, the recipient may object or negotiate for narrower terms with the attorney who sent it. (See Fed. Rule Civ. Proc. 45(b)(1), Fed. Rule Crim. Proc. 17(d);

c. Inadequate time to respond. This sometimes happens with requests for student records because the University must notify the student (or former student) first. A subpoena that does not allow a reasonable time for compliance may be objected to or a different response time may be negotiated. (Fed. Rule 45 (c)(3)(A)(i)),

*“Personnel file” means any employment – related or personal information gathered by an employer.

d. Burdensome travel. If t he subpoena forces the individual to travel too far, there are grounds for objection. (See Fed. Rule 45 (c)(3)(A)(ii) )

e. Where undue burdens or “adequate excuse” exist for non- compliance, the recipient may be able to object to or negotiate change to the subpoena.

II: Important Facts To Determine When Subpoenaed:

The rules for subpoenas vary on the type of case (criminal or civil) and the issuing authority (state court, federal court, administrative agency). The most important initial aspects to determine when first receiving a subpoena include:

a. What does the subpoena request (testimony, deposition, or production of documents)?

b. What court issued the subpoena (federal, Pennsylvania, another state court, or an administrative agency/commission)?

c. What type of case did the subpoena stem from (civil or criminal)?

III. General Steps to Take for Subpoenas for Documents from Federal or Pennsylvania Courts

1. Check how the service was rendered:

a. For federal subpoenas , some courts hold that there must be personal hand delivery of the subpoena to the individual named in the subpoena. Other courts allow service by certified mail. This rule applies for both civil cases and criminal cases.

b. For Pennsylvania subpoenas, service may be rendered by personal delivery of the subpoena to the recipient, or by certified or registered mail, return receipt requested.

2. Check for jurisdictional limitations:

a. Federal civil subpoenas are only valid if served:

i. Within Pennsylvania if it was issued by a federal district court in Pennsylvania, or

ii. Outside of PA but within a 100 miles from the place selected for the individual to produce the documents.

b. For federal criminal subpoenas, there are no jurisdictional restrictions. Unlike the federal civil cases, service may be rendered anywhere within the United States, without geographical limitation.

c. For all Pennsylvania criminal and civil subpoenas , any state court in PA can issue and serve a valid subpoena to any person within the state. However, the rules for depositions differ. Contact Legal Affairs concerning depositions.

3. Does the person named in the subpoena have control of the documents:

a. In all federal cases, if you do not have control of the documents, you should object by notifying the requesting party in writing.

b. In all Pennsylvania cases, for any requests for public records or medical records, if the custodian lacks custody of the requested documents, the custodian must send an affidavit stating lack of custody to the court.

4. Does the subpoena request confidential information:

For all subpoenas , if any confidential records are requested (including student records, medical records, personnel files, etc.) the procedure for responding may be affected by the specific statutes concerning that type of record. You may file a motion to quash the subpoena, or seek a protective order, if the subpoena requests privileged or confidential information. Under the statutes, you may also have to give notice to the student or employee who is the subject of the records. Improperly disclosing confidential information could harm the University’s case if the University is a party, and it could create possible civil liability.

5. Is the request otherwise objectionable:

Generally, a subpoena is objectionable if it is “oppressive or unreasonable” Contact Spadea & Associates, LLC at 610-521-0604 to determine if there are other grounds to object.

6. Making objections or motions to quash:

a. For all federal cases , any objections should be made in writing within 14 days after service or before the date requiring production of documents. Objections should be made directly to the party or attorney requesting the subpoena. The attorney may then modify the subpoena or seek a court order for the documents. A motion to quash should be made to the issuing court soon after receiving the subpoena.

b. For all Pennsylvania courts, a person must make an objection to the issuing attorney, or a motion to quash directly to the court, within 20 days of service of the subpoena (or before the time specified in the subpoena to comply if that time is less than 20 days).

7. Requests for Production of Documents and Subpoena’s that are not issued by a Court:

A request for production of documents or subpoena sent by an attorney to other parties and non- party witnesses during the discovery phase of litigation is different from a court issued subpoena. In that case the non party witness should not provide confidential information without a court order until consulting with his attorney. To do so may subject the non- party witness to being sued for disclosing the confidential information without proper permission.

Call Gregory J. Spadea immediately at 610-521-0604 if you get a subpoena.

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