Subpoena Duces Tecum

[~flipdizzy~]

Can documents be requested via a subpoena duces tecum before a court date has been set? All petitions and counter-motions and such have already been filed. I'm being told by my attorney that we have to sit on the subpoena until the judge sets a court date. What if the judge sets a date quickly, that doesn't give a person much time for discovery does it? Just doesn't make sense to me.
Thanks

[Lee Borden]

Hmmm. Here's the text of ARCP 45. I'm not aware of any procedural reason for waiting, but your attorney may be intentionally holding off in an effort to conserve your money. Is that possible?

Rule 45. Subpoena.

   (a) Form; issuance.

(1) Every subpoena shall.

(A) state the name of the court from which it is issued; and

(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and

(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and

(D) set forth the text of subdivisions (c) and (d) of this rule.A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.

(2) A subpoena commanding attendance at a trial or hearing and a subpoena commanding attendance at a deposition shall issue from the court in which the action is pending.

(3) The clerk shall issue a subpoena to a party requesting it except that a subpoena for production or inspection, separate from a subpoena commanding the attendance of a person, shall issue from the court in which the action is pending pursuant to the additional requirements set forth below:

(A) Notice of Intent to Serve Subpoena for Production or Inspection. The party seeking issuance of a subpoena for production or inspection shall serve a notice to every other party of the intent to serve such subpoena upon the expiration of fifteen (15) days from the service of the notice and the proposed subpoena shall be attached to the notice. The court may allow a shorter or longer time. Such notice may be served without leave of court upon the expiration of forty-five (45) days after service of the summons and complaint or other mode of service under Rule 4-Rule 4.4 upon any defendant, except that leave is not required within the forty-five- (45-) day period if a defendant has previously sought discovery.

(B) Objection to Issuance of Subpoena for Production or Inspection. Any person or party may serve an objection to the issuance of a subpoena for production or inspection within ten (10) days of the service of said notice and in such event the subpoena shall not issue. The party serving the notice may move for an order under Rule 37(a) with respect to such objection. If no objection is timely served, the clerk shall cause the subpoena to be issued upon the expiration of fifteen (15) days from the service of the notice or upon the expiration of such other time as may have been allowed by the court.

(C) Content of Subpoena for Production or Inspection. The subpoena shall be directed to a person at a stated address and, if the name of the person is not known, the subpoena shall give a general description sufficient to identify the person or the particular class or group to which the person belongs. The subpoena shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The subpoena shall specify a reasonable time no less than fifteen (15) days after service unless the court orders otherwise, and the manner of making the inspection and performing the related acts. Such activities with reference to documents or tangible things shall take place where the documents or tangible things are regularly kept or at some other reasonable place designated by the recipient. The subpoena may give the recipient an option to deliver or mail legible copies of documents or things to the party serving the subpoena, but the recipient may condition the preparation of copies on the payment in advance of the reasonable cost of making such copies. Any other party shall have the right to be present at the time of compliance with the subpoena. The subpoena shall advise the recipient of the right to object at any time prior to the date set forth in the subpoena for compliance therewith.

(D) Availability of Copies of Documents. If the party serving the subpoena obtains copies of documents or things, that party shall make available a duplicate of such copies at the request of any other party upon the payment of the reasonable cost of making such copies.

(b) Service.

(1) A subpoena may be served by the sheriff, a deputy sheriff, or by any other person who is not a party and is not less than eighteen (18) years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person or by leaving a copy at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein and, if the person's attendance at a place more than 100 miles from the person's residence is commanded, by tendering to that person the fees for one day's attendance and an amount to reimburse the mileage allowed by law. Prior notice of intent to secure the issuance of a subpoena to command production of documents and things or inspection of premises before trial under the procedure set forth in subparagraph (a)(3) of this rule shall be served on each party in the manner prescribed by Rule 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at any place within the state.

(3) Proof of service when necessary shall be made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.

(c) Protection of persons subject to subpoenas.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court from which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney fee.

(c) (2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying at any time before the time specified for compliance may serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. "Serve" as used herein means mailing to the party or attorney. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(c) (3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it.

(i) fails to allow reasonable time for compliance;

(ii) requires a resident of this state who is not a party or an officer of a party to travel to a place more than one hundred (100) miles from the place where that person resides, is employed or regularly transacts business in person, or requires a nonresident of this state who is not a party or an officer of a party to travel to a place within this state more than one hundred (100) miles from the place of service or, where separate from the place of service, more than one hundred (100) miles from the place where that person is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(iv) subjects a person to undue burden.

(B) If a subpoena.

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or

(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial,the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) Duties in responding to subpoena.

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).

(dc) District court rule. Rule 45 applies in the district courts.

[~flipdizzy~]

Thank you Lee for a copy of Rule 45, it will be useful. I don't believe he diid what he has done in order to save me money but I do think it has been done because he has a poor work ethic.

Here is what has happened. I hired the Attorney the middle of October and requested interrogatories be sent out and provided the name of the person who was in possession of certain needed documents. He said he could not follow through with interrogatories or the subpoena until the judge set a court date. I started calling once a week asking if he had requested a court date. Finally the first week of December he requested a court date and told me he would send out the subpoena and interrogatories.

The attorney has an accident that means surgery and time out of his ofice. I get a letter from him the first week of January telling me that there is a court date and he can "finally" send out the subpoena and interrogatories. In the letter he tells me his computer had crashed and he had lost all my information and could I resend the name and address of person to send subpoena to and also the list of interrogatories. By the way, I had written up the interrogatories myself because I got tired of waiting for him to do it. He tells me the first week of January that he will do it immediately.

Our court date is February 24th and he did not send out the subpoena until the 19th of this month telling the "non-party" to respond, "on or before the 24th of February. He sent out the list of interrogatories on the 24th which gives the other party 30 days to respond but gives us very little time to study the responses to the interrogatories. He has put us in a position of having no time to study the documents we will receive and given the other parties very little time in which to respond to the subpoena and interrogatories.

Then he tells me the judge has ordered mediation of all matters and that mediation is to take place February 1. How do we go to mediation and try and negotiate with someone when we dont' have all the documents we need? In my opinion his behavior as an atorney is absurd.

I have talked to him weekly and sent one email a week asking him to get these things done. He was paid a hefty retainer fee and, in my opinion only responded to my needs when I started calling his office daily and demanding he do it. I fired him yesterday and wrote a motion requesting a continuance based on the fact that I will not have documents needed to defend my position due to my attorney's unwillingness to send out the subpoena and interrogatories in a timely manner.

I requested my retainer fee be returned and he told me he would check my file and see if I was owed any money. What a hoot, this guy royally screwed me over and now he wants me to pay him for doing it. The more I deal with the family court system and the attorneys involved the more puzzled I become.