Articles / 08.04.2016

The Critical Role of Subpoenas in Litigation

Authored by: Samir Dahman and Alexis Preskar

Lawsuits are about evidence – namely, who has it and how much is there.  For that reason, parties (and their attorneys) devote a significant amount of time to gathering information through the discovery process.  Generally, parties are supposed to play nicely and share their information with the opposing side.  But of course, that usually isn’t the reality.  Frequently, parties will object to sharing information, arguing that it’s not relevant or that it’s too burdensome to produce.  Additionally, obtaining complete and truthful information is often easier obtained from disinterested, third-parties than from parties who have an incentive to only provide information that helps their case, not yours.  This is where the all mighty subpoena comes into play.  The subpoena is so fundamental to litigation that it has its own rule of civil procedure, separate and apart from the general rules governing party-only discovery.

Subpoenas, through Civil Procedure Rule 45, authorize litigants to obtain both testimonial and physical evidence from non-parties.  Non-parties are more likely to truthfully and completely respond to subpoenas than parties through traditional discovery because:  (i) they have a less vested interest in the litigation, and (ii) they can be sanctioned if they do not comply with the subpoena.

Time and time again, KJK has used subpoenas to obtain critical information and valuable witness testimony that the other side claimed simply didn’t exist.  With this information in hand, we have proven our clients’ claims or disproven adversary’s claims.  In turn, this has resulted in dramatically more favorable settlements and verdicts for the client than if we had solely relied on the word (and delay tactics) of the other parties.  In cases such as this, even if the information turns out to be less valuable than expected, the mere discovery of something the other side was trying to hide can be enough to move the litigation forward.

A couple important points about subpoenas:

  • They cannot be used against parties – only non-parties – but those non-parties include both people and businesses.
  • They can be used for more than just forcing a reluctant witness to testify. You can use a subpoena to request a non-party:
  • produce documents, electronically stored information, or tangible things and permit their inspection and copying;
  • produce and permit inspection and copying, testing, or sampling of any tangible things that are in the possession, custody, or control of the person; or
  • permit entry upon property that is in the possession or control of the person.
  • If you require someone to attend a deposition or trial, you must pay them mileage and fees for the day.
  • Subpoenas can be delivered in person or through the mail, by attorneys, or law enforcement.
  • The applicable rule of civil procedure is nearly identical for federal and Ohio state courts, but parties should carefully review each depending on where the suit was filed.

Of course, subpoenas are not a magic fix for every discovery issue.  First, non-parties may legitimately not have the requested information; hence the repeated phrase within their “possession, custody or control.”  Second, either the person subpoenaed or the opposing party may seek to quash the subpoena (have it thrown out) if, for example, it’s unreasonable or would require the disclosure of privileged information.

In partnership or closely held company disputes, subpoenas are particularly effective to obtain records from financial institutions and accountants, because those entities regularly receive subpoenas and know their duties under the law.  At the end of the day, a skilled litigator always considers the value of subpoenas in the discovery process.