Businesses and individuals are often served with subpoenas ordering a person to appear and give testimony and/or to produce documents, even if they are not party to a lawsuit. Determining when and how to respond to a subpoena is important and can carry significant implications for the business or individual served. If your client is served with a subpoena, below are some things to consider:
1. WHAT TYPE OF SUBPOENA IS THIS?
It is important to understand what types of subpoena your client was served with and whether it was issued in a civil case or a criminal case or in some other types of proceeding. For example, some of the considerations and rules that apply to a subpoena issued in a civil case will differ from those that apply to grand jury subpoenas issued in a criminal matter. Understanding the type of subpoena and the context in which it was issued is an important first step.
2. IS IT A PROPER SUBPOENA?
The next question practitioners should ask is whether the subpoena is in proper form. Texas Rule of Civil Procedure 176.1 mandates that subpoenas in civil cases meet certain form requirements, including that the subpoena:
- Be issued in the name of “The State of Texas”;
- State the style of the suit and its cause number;
- State the court in which the suit is pending;
- State the date on which the subpoena is issued;
- Identify the person to whom the subpoena is directed;
- State the time, place, and nature of the actions required by the person to whom the subpoena is directed;
- Identify the party at whose instance the subpoena is issued, and the party’s attorney of record, if any;
- State the text provided for in Texas Rule of Civil Procedure 176.8(a); and
- Be signed by the person issuing the subpoena.
Tex. R. Civ. P. 176.1. Failure to comply with these form requirements may render a subpoena legally insufficient and subject to a challenge by the party receiving it. See, e.g., Grunauer v. Difilippo, No. 07-03- 0149-CV, 2004 WL 111462, at *1 (Tex. App.—Amarillo Jan. 22, 2004, no pet.) (holding that a subpoena was properly quashed for failing to meet the form requirements of Rule 176.1).
3. WHO OR WHAT IS BEING SUBPOENAED?
Subpoenas may command the person to whom it is directed to take certain actions such as: (a) attend and give testimony at a deposition, hearing, or trial; or (b) produce and permit inspection and copying of designated documents or tangible things in the person’s possession, custody, or control. See Tex. R. Civ. P. 176.2.
It is important to understand whether your client is being subpoenaed as a party to a lawsuit, as a nonparty witness, or as a custodian of records. For example, a party to a lawsuit may compel discovery from a nonparty—that is, a person who is not a party or subject to a party’s control—by serving a subpoena compelling: (a) an oral deposition; (b) a deposition on written questions; (c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; or (d) a request for production of documents and tangible things under Rule 205.1. See Tex. R. Civ. P. 205.1. If a party seeks production of documents or tangible things from a nonparty, the party must serve a notice to produce documents or tangible things on the nonparty and all parties at least 10 days before the subpoena compelling production is served. See Tex. R. Civ. P. 205.2. Understanding who is being subpoenaed, what is being subpoenaed, and why it is being subpoenaed is therefore important in helping evaluate how you need to respond on behalf of your client, or if you need to challenge the subpoena.
4.DOES MY CLIENT HAVE TO BEAR THE COSTS FOR RESPONDING TO A SUBPOENA?
It depends. There are different rules that apply to parties versus nonparties and to different types of subpoenas. For example, if your client is a nonparty and the subpoena was issued in a civil lawsuit requesting the production of documents, then generally your client is not required to bear the costs for responding to a subpoena. See Tex. R. Civ. P. 205.3(f). In this example, the party that served the subpoena requiring the production of documents must reimburse the nonparty for the reasonable costs of production. “Reasonable costs of production” under Rule 205.3(f), however, do not include a nonparty’s attorneys’ fees incurred when responding to document subpoenas. See BASF Fina Petrochem. Ltd. P’ship v. H.B. Zachry Co., 168 S.W.3d 867, 872-73 (Tex. App.— Houston [1st Dist.] 2004, pet. denied). Make sure you understand how costs for responding to a subpoena can be allocated so that you may assert your client’s rights to reimbursement where applicable.
5. CAN I OBJECT TO OR CHALLENGE THE SUBPOENA ON BEHALF OF MY CLIENT?
Yes. A subpoena can be challenged, and not just by the person being subpoenaed, but also by any party to the lawsuit or by any other person that is affected by the subpoena. See Tex. R. Civ. P. 176.6; 205.3(d). Challenges generally take on the form of a motion for protective order or objections to the subpoena. See Tex. R. Civ. P. 176.6(d)–(e). It is important to understand when and how to file a challenge to a subpoena to protect your client’s interests. Many times, subpoenas will be overbroad, harassing, or seek to invade a protected right. It is the burden of the party who has been subpoenaed, or any other person affected by the subpoena, to challenge the subpoena in a timely manner.
6. CAN MY CLIENT JUST IGNORE THE SUBPOENA?
No. The most important thing to keep in mind is that it is never a good idea for your client to simply store the subpoena away and forget about it. If your client fails to comply with a subpoena, they could be subject to fines or held in contempt of court. See Tex. R. Civ. P. 176.8. Advise your client that it is always best to protect their rights and respond appropriately to subpoenas through counsel. Santos Vargas