Robbins: Understanding subpoenas
Lately, subpoenas are flying out of our nation’s capital like so many Frisbees on a summer weekend at Palm Beach. In fact, in a rush of recent exasperation, the president recently accused House Speaker Nancy Pelosi of “handing them out like cookies.”
The yum factor of a delicious home-baked treat aside, what exactly is a subpoena and how and when are they used?
Subpoena — pronounced sub-PEE-nuh — and sometimes spelled “subpena,” is a powerful little devil. Derived from the Latin meaning “under penalty,” it instructs the party to whom it is directed to produce requested documents, appear before the court, or to present oneself before another body for another legal proceeding. It is a court-ordered command that requires the subpoenaed party to do something, such as testify or present information that may help support the facts that are at issue in some pending matter. As the Latin origin implies, a person who receives a subpoena, but does not comply with its terms, may be subject to civil or criminal penalties, such as fines, jail time, or both.
A technical and descriptive term for an “ordinary” subpoena (that is one in which a person’s testimony is sought) is sometimes referred to as a “subpoena ad testificandum” which is more of a mouthful than you need. Likely, few lawyers are even familiar with the term. More commonly, a subpoena in which testimony is sought is simply referred by lawyers and the Court alike as “a subpoena.”
As noted above, subpoenas may also seek documents, papers or other tangible things relevant to a matter in dispute, controversy or other matter under inquiry. Such subpoenas are commonly known as “subpoenas duces tecum” or, in shorthand, a “subpoena d.t.” and, yes, attorneys do commonly refer to them that way. Such subpoenas seek and require the production of books, papers or other “tangible” things which may affect or have bearing upon the particular under consideration.
A subpoena d.t. compels a witness who has requested physical items in his or her possession or control to produce them at a certain time and place for their review. Such command carries the full force, weight, gravitas, and authority of the court. Though a subpoena may be issued by one side or another to a litigation, it is, for all intents and purposes, issued under court auspices and subject to its powers.
A third kind of subpoena is known as an “alias subpoena,” one which is sometimes issued when the original subpoena has been returned, having failed to accomplish its purpose. To understand this better, think of a subpoena as an official order of the court for someone to present themselves at a certain time and place in order to give testimony about a certain matter. For the order to have any force or authority, it must first be received by the person to whom it is directed. If the person can’t be found, the subpoena is said to be “returned” and an alias subpoena may then be issued to accomplish the same purpose.
One of the key steps proceeding to the trial of a matter is “discovery.” Discovery is that journey of enlightenment by which information relevant to the matter in controversy is gathered by each of the parties to the litigation. The most common elements of discovery include written interrogatories, requests for admission, requests for production of documents and other tangible things and the taking of depositions. In certain instances, the medical or psychiatric examination of a party may also be compelled.
Written interrogatories are a series of questions, drafted by a party to the litigation, asking for answers to certain key matters from the other party. The answers are sworn, under oath, as true. Requests for admission ask the other party to admit certain allegations made by the party making the request. Requests for production command the opposing party to disgorge those documents which may be relevant to the dispute. All of these devices are intended to ferret out the truth and level the playing field when the trial, at last, takes place.
Unlike the other tools of discovery, depositions are “live.” Instead of typing out the answers to interrogatories, responding to requests for admission, or gathering and delivering requested documents, a deposition compels the party being deposed (known as the deponent) to give live answers to questions posed, “mano-a-mano,” by opposing counsel. In a sense, a deposition is like a mini-trial wherein the deponent is sworn to the tell the truth and, before the eyes of a court reporter (and, increasingly, a videographer) who records the testimony, responds live, as if on the witness stand. The way a deponent is notified of his or her deposition, and the means by which he or she is compelled to bear witness at the deposition, is by a subpoena which compels the deponent’s attendance at a certain time and place.
Often in association with a subpoena compelling a person’s attendance and testimony, particularly in commercial disputes, the party to be deposed will be served with a subpoena d.t., requiring the person to bring to the deposition certain documents. Generally, the deposing attorney will then question the deponent, among other things, about the documents which the deponent has produced.
Similarly, subpoenas are employed to compel the testimony of a witness at trial.
In the current humid D.C. climate, subpoenas are being deployed (if you believe the president, willy-nilly) to get at the facts of alleged presidential misconduct. People and their papers are being commanded to appear before various investigative congressional committees.
Such are the times in which we live!
Subpoenas are the sledgehammer of the law. They are the kindergarten teachers of the courtroom who make us share when we don’t want to, who insure that fairness, equanimity — and most of all the truth — at least most times comes to the fore so that justice may prevail.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.