Served with a Subpoena in PA, Now What?!

Have you been served with a subpoena in Pennsylvania and are wondering how to respond?

Our Pittsburgh litigation lawyers handle nearly every kind of litigation matters in Western PA.  Call or email our Pittsburgh lawyers for a consultation any time about responding to a subpoena in state or federal court: 

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The bottom line is, if you’ve been subpoenaed to testify (or produce documents), talk to an attorney, because your response (or failure to respond) could have serious consequences for you in state or federal court. 

For example, Pennsylvania state court rule 234.5 provides:  

a. If a witness fails to comply with a subpoena, the court may issue a bench warrant and if the failure to comply is willful may adjudge the witness to be in contempt.

b. If a party fails to comply with a subpoena, a notice to attend or a notice to produce, the court may enter any order imposing appropriate sanctions . . .  and, if the failure to comply is for the purpose of delay or in bad faith, the court may impose on that party the reasonable expenses actually incurred by the opposing party by reason of such delay or bad faith, including attorney’s fees. 

Moreover, even if some technical defect to the subpoena exists — such as it being served via regular mail versus hand-delivery or certified mail — your acknowledgment of the subpoena can trigger the above penalties for noncompliance. 

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Call or email our Pittsburgh lawyers for a consultation any time about responding to a subpoena in state or federal court:    

412.342.0992

Or read-on below, for additional information.  

 

Responding to the Subpoena

In federal court, the rules require the party serving a subpoena to also serve on the witness a copy of the federal rule governing the response. Easy-peasy, right? Here is a link to both a sample federal subpoena and the rules governing it.   

In this article, we’ll focus on (1) Pennsylvania (state) law governing subpoenas and (2) practical advice to consider when responding to any subpoena, whether in state or federal court, for testimony, documents or both, which is called a subpoena duces tecum.  

Option 1:  Do Nothing. 

It may be tempting to simply ignore the subpoena.  After all, why bother?  Calling a lawyer for advice could consume lots of time and/or money, right?  Plus, in truth, the party serving the subpoena might not even need your testimony and/or documentation. Perhaps he has other witnesses who can provide the same information and/or documents that you might possess.  Maybe he’s just seeing who’ll respond first, planning to ignore other potential witnesses, like yourself.

It’s possible, at least.  

But more likely, your testimony is needed, even if you think you “don’t know anything” about the case. But why? It’s simple: no party to litigation wants a surprise at trial.  Thus, a party to litigation will want to hear from all potential witnesses in advance of trial.  A party may serve on you a subpoena for your deposition testimony, for example, whether you possess information or not. So maybe the party serving the subpoena on you: 

• • just wants to speak with you and have it recorded (as evidence), in case you’re not available for trial on the date scheduled by the court, 
  • wants to confirm that you, in fact, know nothing about the case, or 
  • wants to compare the document or documents in your possession to those the lawyer already obtained elsewhere.   

That said, the matter is often more complicated — and potentially harmful to your interests, depending on how you respond to the subpoena. For example, the party serving the subpoena may:  

• • intend to sue you, and they’re taking your testimony to fine-tune their anticipated lawsuit against you, as the next defendant in the case, or 
  • they want you to violate a nondisclosure agreement, or NDA, or 
  • they really want your employer’s information, such as trade secrets, which you might possess without knowing, or
  • they want you to admit to a crime, or 
  • they seek confidential or privileged information from you.  

This brings us to the next option. 

 

Option 2: Contact the Party Serving the Subpoena 

If you’re like most witnesses served with a subpoena, you’re simply looking for the “easiest way out.”  If served, you may be tempted to simply call the lawyer seeking your testimony and/or documents — versus hiring a lawyer of your own — to “see what this is really about” to “nip it in the bid.” However, the lawyer serving the subpoena on your has no obligation to disclose his true reasons for seeking your testimony. He’s not allowed to lie, but is allowed to conceal his true intent. 

For example, you’re free to ask the lawyer seeking your testimony, “what’s this about?”  But he could respond, “we just want to know what you witnessed,” without disclosing his true desire for protected information and/or plan to sue you next, depending on your deposition testimony.

Remember that “anything you say can be used against you,” like they say on TV. This applies even before you sit down to provide your testimony. Talk to a lawyer before giving a statement to anyone.  Any words you say, even words said casually to inquire the reasoning for a subpoena on you, constitute a “statement.”   

 

Option 3: Honor the Subpoena and Provide the Testimony and/or Documents Requested. 

It may be that the information sought from you is harmless, such that honoring the subpoena served on you will make sense.  However, providing the requested testimony and/or documents can potentially expose you to: 

• • personal liability for any statement you make,
  • criminal prosecution for inadvertently admitting a crime, and/or
  • liability for sharing confidential or protected information that you were not allowed to share relative to some prior obligation of yours that you don’t even remember.   

This brings us to the fourth option. 

 

Option 4:  Object to the Subpoena 

It may be that no valid objection exists in regard to the subpoena served on you.  However, you should retain a lawyer to (a) look for objections and/or (b) coordinate the logistic of your testimony (time, place, manner) and/or production of documents, if you intend to honor the subpoena.  If you are going to object, your attorney should raise the objections informally via written letter to all parties, when possible. If, however, the situation requires formal action on your part, you have options.  Your lawyer can file:

• • a Motion to Quash the Subpoena and/or 
  • Motion for a Protective Order  

 

Option 5:  Motion to Quash 

A motion to quash a subpoena can relate to technical grounds visible from the face of the subpoena, such as: 

• • the scope is too vague, 
  • the subpoena fails to provide adequate time to respond, or 
  • the request is too voluminous as to create an undue burden.   

A party can also assert via motion to quash the subpoena should fail because it requests: 

• • Confidential Information: the witness possessed information protected via a confidentiality agreement entered into by the witness.
  • Privileged Information:  the information sought pertains to protected medical records, attorney-client communications, psychological records, statements to clergy, or the spousal privilege. 
  • Constitutional Rights: These include the right against self-incrimination.  Will the testimony expose the witness to criminal charges?  
  • Insufficient alternative sources: The party issuing the subpoena failed to make a reasonable attempt to obtain the information from another source.  

All that said, it is never a good basis for motion to quash, where the witness alleges: 

A lack of 20 days prior notice.  To be clear, the witness is not entitled to twenty (20) days notice prior to service of the subpoena.  See Pa.R.C.P. 231. Rather, the party serving a subpoena need only give prior notice to other parties to the case, so they — the Plaintiff and/or other Defendants — can object to service of the subpoena on the witness.

A Failure to Pre-pay Your Time Away From Work or Other Obligation.   A witness must be paid for time and travel expenses.  However, these are only $5 per day, plus gas mileage.  If the subpoena is served by mail, the check for the fees must be included with the subpoena.  However, the witness is not entitled to payment for lost wages or lost economic opportunity. Click here for more.  

 

Option 6:  Motion For a Protective Order 

A motion for a protective order can include a motion to quash, described above.  However, the motion for a protective order typically presumes the witness will testify and/or provide documents.  The “protective” aspect means — by order of court — the parties to the case must protect the information or documents provided the witness from dissemination to others.  For example, a witness subpoenaed to attend a deposition might ask a court to limit the parties to the case from sharing the deposition transcript with anyone and to destroy it — and all copies of it — upon resolution of the case.  Protective orders often result from a negotiated agreement on which a judge signs, as an order of court, without a hearing.  

 

Some Thoughts On the Positive Side 

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