“You’ve Been Served” – Responding after Service of a Subpoena

A process server or sheriff knocks on your door, or shows up at work, and serves you with a subpoena. It’s not something that happens often, so how do you respond?

The easiest and most efficient way to respond to service of a subpoena is to call a lawyer. They can advise you on the legality of the subpoena and advise if there are any options for responding. Some of the things the attorney can advise on are: Was the subpoena lawfully issued and is it valid? Do you have a legal obligation to provide documents or testimony? What can you do if you have a scheduling conflict or not enough time? What happens if you do not show up or provide the requested documents?

Is the Subpoena Lawful?

Subpoenas are governed by Wis. Stat. § 805.07 and Wis. Stat. ch. 885. Though they are not difficult or time consuming to issue, subpoenas may not be legally valid if a step was missed and therefore, cannot be enforced.

Subpoenas generally can compel a person to either provide testimony – whether that is in a court hearing or at a deposition – or compel a person to produce documents, records, or electronic records.

To be effective in Wisconsin, a subpoena must be issued in a pending Wisconsin lawsuit or administrative proceeding. A person with a lawsuit pending in another state may issue a subpoena to a Wisconsin resident or business, but that still requires that a Wisconsin court issue a Wisconsin subpoena. Subpoenas must contain language that advises the witness of where and when they will be providing testimony or producing documents, advise the witness of who the parties are in the lawsuit or proceeding, and advise a witness that failure to comply can result in punishment for contempt.

Witnesses are also entitled to witness fees and, if they appear in person (as compared to a video conference appearance), mileage fees. Those fees differ based on whether the witness is appearing in municipal, state, or federal court proceedings. Those fees must be provided at the time the subpoena is served.

Subpoenas can only be issued by lawyers, judges, court clerks, committee chairpersons of municipal entities, or other governmental agents set for by law. People who do not fall within one of those set categories cannot issue lawful subpoenas.

Finally, subpoenas must be personally served by physically handing the subpoena (and associated fees) to the witness.

If a subpoena does not comply with any one of the multiple prerequisites, a witness may not need to comply.

Do I Have to Testify or Provide the Requested Documents?

As a general rule, no person has the ability to refuse to be a witness in Wisconsin. However, there are exceptions to that rule. For example, Wisconsin has codified into law a number of privileges where a person can refuse to testify. Additionally, individuals who are being called to provide expert testimony (testimony rendering opinions that fall within their specific area of expertise) can refuse to render opinions if they are not being compensated as an expert witness or if they are being asked to render new opinions. A treating doctor, for example, can be compelled to testify about her opinions as to a patient’s diagnosis if she made that diagnosis previously. But she can refuse to provide testimony about the reasonableness of certain alternative treatments, for example, if she did not evaluate or consider those treatments for the patient.

With respect to a subpoena that requires a person or entity to produce documents, the nature and scope of the document requests will dictate whether the witness has the ability to challenge that request. A subpoena that requires production of a substantial number of records in a short period of time or production of documents that will require substantial redactions may provide a basis to challenge the validity of the subpoena. Additionally, some entities have a legal right not to produce certain documents even if the subpoena is valid. School records of students, juvenile police records, and health records, for example, cannot generally be compelled by subpoena (subject, of course, to certain exceptions).

If a witness wants to challenge the validity of the subpoena or argue that they should not be compelled to testify or produce documents, the witness will need to make that argument to the judge presiding over the legal proceeding. Witnesses may file a motion to quash the subpoena or ask the court to modify the subpoena. The court will evaluate whether the subpoena was lawfully issued and/or evaluate whether the scope of the subpoena is reasonable and make a decision.

What if I Have a Scheduling Conflict or Not Enough Time to Produce the Documents?

Most times, subpoenas are not necessarily time sensitive (unless there is a court proceeding like a trial or hearing before a judge). If a subpoena is issued for a witness to testify at a deposition or produce documents at an attorney’s office, those can often be rescheduled. If a witness does not mind testifying or producing the documents and simply has a scheduling conflict, a quick call to the attorney who issued the subpoena might solve the problem. Otherwise, if the attorney refuses to reset the date, only a court order to quash or modify the subpoena will relieve a witness from their obligation to appear.

What Happens if I Don’t Appear or Produce the Requested Documents?

If a witness fails to appear to provide testimony or appears without producing the requested documents (to the extent the witness has the documents or the documents exist), the attorney who issued the subpoena can ask the court to issue contempt orders or a bench warrant to compel the attendance of the witness. The court will evaluate the circumstances under which the witness did not appear or did not produce the documents and consider what remedies are appropriate.

Conclusion

The validity of a subpoena varies depending on who issued it, how it was served, what it requires, and whether all prerequisites were fulfilled. Even if the subpoena was lawfully issued, witnesses may not be legally required to provide testimony or documents depending on the nature of the documents sought or the relationship of the witness to the proceedings. Witnesses should consult with an attorney to ensure they fully understand their obligations when responding to a subpoena.