Subpoenas (Part 2)

Yesterday, we talked a little about why subpoenas aren't as bad as they may seem when you're on the receiving end of one (in civil matters at any rate), and about how they are critical tools to any attorney's repertoire.  Though they are used to gather information which may be critical to a case, there are three major downfalls, which I'll try to list using one word each (my challenge for the day):  objections, contradictions, and money.  Once again, I'm going to emphasize how these three disadvantages factor into the use of subpoenas in civil law as opposed to criminal law, with specific examples of how they have affected cases in this firm.

Objections to Subpoenas
Unfortunately, subpoenas for production of evidence (duces tecum) are more easily objected to than subpoenas which force someone to testify in court (ad testificandum), and the majority of subpoenas in family law cases (especially during discovery) are for production evidence.  Companies may object to your subpoena(s).  Granted, any state's rules of civil procedure contain guidelines as to when a party must comply with a subpoena, and guidelines as to what information the company can object to providing.  Subpoenas only require the served party to respond within a prescribed time frame either with the documents/evidence/information requested, or with a response (which is typically the reason(s) why they object to providing the requested information).  My favorite is "(Insert Party's Name Here) objects to the Subpoena to the extent that it seeks documents and information that is vague, ambiguous, overbroad, and unduly burdensome."

In our office, and pretty much every office, the subpoenas issued contain extremely specific requests for specific documents which we feel may contain information which can help our case.  We ask for specifc documents such as "account statements" or "credit card application(s)", and even go so far as to include the full name, date of birth, and social security number of the person whose documents we are seeking.  We do everything we can to be anything but "vague, ambiguous, overbroad, and unduly burdensome." 

In short, one major disadvantage is that subpoenas may be objected to as opposed to responded to.  If the party being subpoenaed has a legitimate claim as to why they should not respond with the information requested, then a court may not order them to comply.

Contradictory Information
Sometimes, subpoenas return documents which go against whatever it is we are trying to prove.  For example, subpoenas sent to banks may show that they have disclosed everything on the financial disclosure form, and do not have any separate accounts that have not previously been mentioned.  Though it seems to be a rare occurence, sometimes people are honest during the course of legal proceedings and subpoenas sometimes return information which supports this, and there's nothing that can really be done about it.

Subpoenas Can Turn Into $ubpoenas
Couldn't resist using the dollar sign as a substitute for the letter "S" on this one.  More often than not, the subpoenas come back with a bill.  Depending on how many subpoenas are issued in any given case, the amount of money spent on sending them out can add up very quickly.  Companies in particular want to be paid for the time and energy their employee(s) invested in researching the subpoena, and preparing the documents that were requested.

One case in particular used up a good enough portion of the money in the business acount to piss more than a few people off.  Paralegals were sending subpoenas to just about any company our client's wife ever spoke to, and most of the information they were seeking was frivilous and would not have proved much of anything that we didn't already know to be true.  This cost the firm a lot of money that we probably shouldn't have been spending on one case, and was irritating to say the least.

Take Home Lessons
The main lessons here about subpoenas are simple:  subpoenas are an essential tool to the legal profession, and can often result in the discovery of incredibly useful information;  at the same time subpoenas can be denied, provide information that is the opposite of what you were hoping for, and cost money.  Obviously the potential for positive results outweigh all of these consequences, as long as you don't get "subpoena-happy" and spend too much money on one case.