Subpoenas and Other Things That Go Bump in the Night

Tuesday, November 19, 2013
First, it is gratifying to know you are actually reading what we write and release. We know this is true because a little over a year ago, we received very few questions about subpoenas and today, after writing a little warning piece on the now infamous FDIC subpoenas being issued to appraisers by a private law firm, we get lots of questions. In fact, we get so many we decided to put together a short follow-up piece on different kinds of subpoenas and how to handle them. These are presented in ascending order of concern with the final one being the most dangerous. All are court orders and none of them can simply be ignored…unless you also want to learn about motions to compel and sanctions. 
1. Fact witness subpoenas (aka subpoena ad testificandum): This subpoena is issued to request you to appear as a fact witness at either a deposition or a trial. As long as you are only being asked to deliver testimony about factual issues, there is no reason to get your E&O carrier involved. This is like being the person listed as a witness in the accident report by police when you state you saw the red car run the stop sign and t-bone the blue car. You testify to what you know and/or saw and that’s it. *Be careful you are not really being called to give expert testimony (opinions) by a party that doesn’t want to pay you to testify as an expert. If that is the case, tell the party that issued the subpoena you will not give any opinions unless they pay you to be an expert witness.
2. Document production subpoenas (aka subpoena duces tecum): This subpoena is used to get you to produce documents, usually when one of the parties either refuses to produce documents to the other party or when the documents requested are only in your possession and not the possession of either party. It could be limited to making documents (files) available for copying or it could be used to make you appear to authenticate documents. Either way, you should contact your E&O carrier before complying to be certain you aren’t producing documents which are confidential under your professional standards. *Once again be careful you really aren’t being subpoenaed for one thing and then asked to testify and give an opinion as an expert.
3. Pre-litigation subpoenas (aka the now infamous FDIC subpoena): This kind of subpoena is usually asking for documents or files and is issued before any litigation has even started. This is the most dangerous subpoena to handle and can come from any one of a number of government agencies. You MUST call your E&O carrier or personal attorney if you receive one of these because if you answer the subpoena and produce anything, it can and will be used against you. In the case of the FDIC, the regulatory subpoena powers granted by Congress to the FDIC were being used by a private, for profit, law firm to engage in some free pre-litigation discovery. Since we believe these subpoena powers are non-delegable, we advise anyone who receives one to get legal advice immediately. 
Now you know the different kinds of subpoenas you might receive and what they are for, you can sleep well and stop being afraid of subpoenas and other things that go bump in the night. 

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