SUBPOENA WARS: ENFORCING PRODUCTION

During the litigation of a personal injury claim, an attorney may need to issue a legal document referred to as a “subpoena” if the goal is to require a non-party to the litigation to produce information.  The information sought determines the specific name for the pre-trial subpoena, but they generally either seek someone’s deposition (verbal responses to questions), the production of records or documents, or both.

Assuming the procedure has been followed correctly, there are three main ways to enforce the deposition subpoena and get the response desired: a motion to compel compliance; a contempt proceeding; and/or civil damages action.

A motion to compel compliance is a legal request that the judge enter an order compelling (requiring) the subpoenaed party to comply with the subpoena, whether by appearing to provide testimony, producing documents and business records, or both.  Strict time limits apply to these motions, and sanctions (fines) may be imposed against the person or entity that disobeyed the subpoena.

Contempt is almost like a criminal type of proceeding.  The judge can even issue a bench warrant for the arrest of the subpoenaed party!  It requires a showing that the deponent consciously refused to attend the deposition, having had knowledge about it, the ability to comply with it, and made a deliberate choice not to attend.  A person found guilty of contempt can be fined up to $1,000.00, imprisoned for up to 5 days, and/or pay the other sides’ attorneys’ fees.

A civil action can also be filed against a witness who does not obey a subpoena.  The civil action seeks what is known as a “forfeiture” of $500.00 plus any losses suffered due to the witness’ failure to attend the deposition, including attorneys’ fees and the deposition costs.

Although every situation is different, the motion to compel compliance with the subpoena is often the recommended route.  The frustrating part about this remedy is that the moving party is at the mercy of the judge’s calendar (schedule), since a hearing is required in order to rule on this motion.  Some judges are so busy that a party might have to wait as much as three months in order to get a ruling.