As we know, the procedural rules that surround civil litigation are extensive and, candidly, not always as clear as one might want. And when the case you’re working on necessitates discovery in multiple jurisdictions, well then the ‘ol jigsaw puzzle just got a lot more complicated, didn’t it?
If your case is in a federal court, then life is a bit simpler these days with the recent revision of FRCP Rule 45. Ambiguities of the prior rule have been removed, the abilities of the counsel of record to issue the subpoena have been enhanced, and even the territorial scope of the subpoena has been expanded. If I understand the general consensus of working attorneys and litigation support professionals, these are all for the good and much appreciated.
Now, unlike a subpoena for testimony, where you’ll need a local conference room, a court reporter, and maybe even local counsel, a subpoena for records should be, and can be, much easier to issue and, as you will see, much easier to comply with.
FIRST THINGS FIRST:
You need to direct your witness to an address (generally meaning within 100 miles of where the witness is served) at which the documents must be delivered. But that address need not be an attorney’s office. Nobody is going to be conducting a deposition there and by all probability, in most cases, nobody is going to be examining the documents there. The point is you want the documents in YOUR office. And you want them delivered to you as quickly as possible. Here’s how to do that:
WHAT TO DO?
First, comply with the rules and set a location. You need an actual physical location and, I strongly suggest, a local notary public at that location to take custody of the documents; just in case there is any question about chain of possession.
As it happens, the agents we use around the country to serve process are also, quite conveniently, notaries public or employ a notary public in their office. So we can provide you with the physical location to use on your subpoena for records that is both within the local jurisdiction and that has a notary public waiting there. But wait, there’s more.
WHAT ELSE TO DO?
Assuming your witness complies with the subpoena and delivers documents to our agent’s location, one of two things can happen. If the documents are not too voluminous, our agent will scan and email the documents immediately. That helps a great deal. Otherwise, the documents will be Fedexed back to us for delivery to you the next day. But wait, there’s even more.
AND DO THIS:
Here’s the really practical advice that I believe, that I know from experience, will make everything a bit easier and bit more simple for you and your witness. And will get you the documents you want as quickly as possible.
Along with the subpoena, include a cover letter to you witness. Give your witness the option of sending the documents DIRECTLY to you. Either emailed to you or by overnight delivery (give the witness your Fedex account number). This seemingly simple, maybe in obvious, step is so often overlooked. I have not heard of any downside to making this offer. The subpoena, as written and as served, is complete and effective against your witness. If your witness is non-compliant, you’re ready to make whatever motions you believe appropriate. But by accommodating your witness and looking to make their compliance with the subpoena easier for them, I believe you’ll find you will get the documents you want and get them quicker than would otherwise be the case. You know the ‘ol saying. Cut out the middle man.