Thursday, June 23, 2011

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 2

Myth No. 2:  I can subpoena documents directly to my office.

No.  Technically, there is no such thing as subpoenaing documents.  RCr 7.02(3) states that you may command “the person to whom it is directed to produce the books, papers, documents or other objects designated therein.”  Even though it is the documents you desire, and you could care less about whether the person shows up or not, it is the person under the order of the subpoena, not the documents.  (Hence the phrase subpoena duces tecum, which essentially translates into “bring the documents with you.”) Since it is impermissible to subpoena a person to your office for any purpose (again, other than for a court-ordered deposition), it follows that you cannot command a person to come to your office bringing documents. 

KBA E-423 provides that “subpoenaed documents may be produced only before the court in connection with a judicial proceeding or properly authorized deposition.”  There is an exception for medical records (KRS 422.305), which allows documents to be produced “in lieu of attendance.”

There are a couple of ethics opinions out there relating to subpoenaing records for use in divorce proceedings where the attorneys were mildly sanctioned for subpoenaing their own client’s documents to their office without serving copies of the subpoenas on  the other side.  See Megibow v. KBA, 173 S.W.3d 618 (Ky. 2005)(“The use of subpoenas to obtain documentary evidence or tangible things without an accompanying notice of deposition or notice of hearing or trial has been a recurring problem.  Evidently, some practitioners are unaware that CR 45.01 prohibits such use of subpoenas”) and Munroe v. KBA, 927 S.W.2d 839 (Ky. 1996).  Keep in mind, this was their own client’s documents!  They could have been gotten by release without ANY notice to the other side.  But because a subpoena was used, it was an ethical violation.

The proper way to subpoena documents is to direct the custodian of records to deliver the documents to the courthouse at a hearing, or into the court file.

In Grand Jury proceedings, Commonwealth Attorneys can subpoena people to the Grand Jury for purpose of testifying or providing documents without having to appear live.  The Grand Jury may excuse full or partial compliance with the command of the subpoena or subpoena duces tecum.  Stengel v. KBA, 162 S.W.3d 914 (Ky. 2005).  But the Prosecutor’s subpoena power is not limitless!  See Bishop v. Caudill, 87 S.W.3d 1 (Ky. 2002) for a list of five things the Commonwealth cannot use the Grand Jury for:  (1) add new parties to an already existing indictment; (2) add new charges to an already existing indictment; (3) amend the old indictment; (4) use as a substitute for discovery depositions; or (5) prepare a case for trial.  “[I]f the purpose of subpoenaing [witnesses] is to use the grand jury proceedings as a guise for trial preparation, the subpoenas must be quashed.”  Bishop, supra.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use by Scott West