What happens if I receive a subpoena? *

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What it is.

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A subpoena is a demand for you or your business to produce documents or other tangible evidence, or to appear for a deposition or trial, or to bring documents with you to trial or a deposition.

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• In North Carolina, lawyers are able to issue subpoenas without a judge or other judicial official signing off. 

• A subpoena in a civil action cannot be issued without an underlying lawsuit pending.

• A subpoena issued by an attorney or court outside the state of North Carolina is not necessarily valid unless it complies with state law.

• BUT, a subpoena should be treated by the recipient as the equivalent of a court order.  There are several possible responses to a subpoena, but ignoring it is not one of them without risk of serious repercussions that could include contempt proceedings.

• A subpoena will specify on the front to whom it is addressed.

• A subpoena will state on the front whether it is for court testimony, deposition testimony, and/or production of documents at a specified place.

• The date, time, and location for compliance with the commands will be stated.

• General instructions about potential responses and methods of document production are on the back.

• Subpoenas are governed by Rule 45 of the North Carolina Rules of Civil Procedure.

 

Service.

 

A person or company may be “served” with a Subpoena several ways: 

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• By a Sheriff's deputy.

• By the coroner. 

• By anyone 18 or older (usually a process server or private investigator).

• By registered or certified mail return receipt requested.

• By a Sheriff's deputy or the Sheriff's designee, or a coroner, over the telephone with the person to be served, if the subpoena is only for attendance of a witness.

• Any question about sufficiency of service may be addressed by a written objection to the subpoena.

 

Possible responses.

 

There may be several options for responding to a subpoena, depending on its contents. 

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• First, you may comply.  The methods of compliance are stated on the back of the subpoena.

• Second, you may respond with a written objection within 10 days of receiving the subpoena or before the time for compliance if the time is less than 10 days after service of the subpoena.  An objection should be served on the party or attorney that issued the subpoena, which can be accomplished by mail or facsimile.  An objection should specify the grounds, which may include that the subpoena:

  • fails to allow reasonable time for compliance;​

  • requires disclosure of privileged or other protected matter and no exception or waiver applies to the privilege or protection (usually asserted to protect attorney-client privilege or attorney work product);

  • subjects a person to an undue burden or expense;

  • is otherwise unreasonable or oppressive;

  • is procedurally defective (eg. service was deficient)

• Third, you may file a motion to modify or quash the subpoena within the same time periods as permitted to serve a written objection.  Grounds to quash or modify are the same as those that may serve as grounds for a written objection.  Additionally, a subpoena may be quashed or modified if it seeks confidential or trade secrets information.

 

Objection vs Motion

 

A major difference between serving a written objection and filing a motion to quash or modify is the procedural posture they create.

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• Filing a motion commits the recipients of the subpoena to engage in further court proceedings they initiate and usually involves an attorney at the outset.

• A motion to quash or modify may result in a negotiated resolution over the scope of the subpoena, if that is a significant issue.

• Serving a written objection requires the party that issued the subpoena to seek a court order for compliance. 

• Faced with a written objection, the party that issued the subpoena must decide if the value of the material sought justifies further proceedings that would include a hearing. 

 

When in doubt, call a lawyer.

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Any questions about how to comply with a subpoena or whether an objection or motion is warranted should be assessed in light of the specific facts and circumstances of the recipient and, to the extent possible, an understanding of the needs of the case.