How to Subpoena Local, State and Federal Government Records

How to Subpoena Local, State and Federal Government Records

Trying to get records from the government can be tricky business. But with the right tools and knowledge, you can get the information you need through a legal process called a subpoena. This article will walk you through everything you need to know to subpoena records from local, state, and federal agencies.

What is a Subpoena?

A subpoena is a court order that requires someone to produce documents, records, or other evidence relevant to a legal proceeding. Subpoenas are commonly used during the discovery phase of litigation to obtain information from the opposing party. But they can also be used to get records from third parties, like government agencies, that have information related to your case.

There are a few key things to know about subpoenas:

• They are issued and enforced by the court – You must ask the court clerk to issue you a subpoena and the court can compel compliance if the recipient ignores or contests it.
• There are different types – Subpoenas can order a witness to testify at a hearing or trial. Or they can order the production of documents without testimony, known as a subpoena duces tecum.
• Rules vary – Each court system (federal, state, local) has its own rules and procedures for issuing and serving subpoenas.
• Geographic reach matters – A subpoena’s geographic scope depends on the court that issued it.

When to Use a Subpoena for Government Records

Some of the common situations when you may need to subpoena government records include:

• Criminal cases – The defense may subpoena police reports, forensic tests, or other records held by law enforcement agencies.
• Personal injury lawsuits – The plaintiff can subpoena an accident report from the DMV or medical records from a state hospital.
• Employment disputes – An employee can subpoena personnel records from a government employer accused of wrongful termination.
• FOIA appeals – If an agency denies a FOIA request, a subpoena may help compel disclosure of the records.

But before reaching for a subpoena, always try asking the agency directly first. Many will provide records voluntarily without the need for formal legal action. However, if your request is denied or ignored, a subpoena may be your next best option.

Subpoenaing Local Government Records

To subpoena local government records like police reports, building permits, or agency memos, you must follow the rules of your state court system. The process usually involves:

1. Obtaining a subpoena form from the court clerk – The clerk can provide blank subpoena forms or templates to use.
2. Completing the subpoena – Specify the court, case details, records sought, recipient name/address, and appearance date/time if applicable.
3. Getting the subpoena issued – Take the completed form to the clerk for issuance and signature.
4. Serving the subpoena – Formally deliver the subpoena to the recipient according to court rules for service of process.
5. Filing proof of service – Submit documentation showing proper service to the issuing court.

If the recipient contests the subpoena, a hearing may be held so the judge can decide whether to enforce or quash it. Be sure to consult your state’s rules of civil procedure for specifics on the subpoena process.

Example

Emily filed a premises liability lawsuit against the city for injuries from falling on a sidewalk. To prove the city knew the sidewalk was dangerous, she can subpoena repair records from the public works department. She gets a subpoena form from the court clerk, fills it out naming the department as recipient, has the clerk issue it, and serves the subpoena on the city’s records custodian.

Subpoenaing State Government Records

Subpoenaing state agency records like tax returns or Medicaid files follows a similar process as local governments. Key steps include:

1. Get a subpoena form – Ask the court clerk in the appropriate state court.
2. Complete the subpoena – Identify the specific records sought and the custodian to be served.
3. Have clerk issue it – Take the completed subpoena to the clerk for issuance and signature.
4. Serve the subpoena – Use proper service of process under state rules to deliver it.
5. File proof of service – Submit the proof of service to the issuing court.

State rules vary so review the civil procedure rules for your state’s trial courts. Also check if the agency has regulations governing subpoenas. Complying with both sets of rules is key to successfully obtaining state records.

Example

Mark is appealing a denied unemployment benefits claim. He can subpoena his state labor department file, which contains the denial determination. He gets a subpoena form from the clerk, fills it out naming the department records custodian as recipient, gets it issued and signed by the clerk, serves it on the custodian, and files the proof of service with the court.

Subpoenaing Federal Government Records

To subpoena records from federal agencies, you must follow Rule 45 of the Federal Rules of Civil Procedure. Key steps include:

1. Get a subpoena form – Ask the clerk for the federal district court handling your case.
2. Complete the subpoena – Identify the case details, requested records, recipient name/address, etc.
3. Clerk issues it – No judge signature needed like with state subpoenas.
4. Serve the subpoena – Use proper federal service of process rules.
5. File proof of service – Submit to the federal court clerk.

Federal agencies also have their own rules and procedures for responding to subpoenas. Be sure to review these agency-specific policies to ensure compliance.

Example

As part of a federal employment discrimination lawsuit, an employee can subpoena their personnel file from the federal agency being sued. They get a subpoena form from the federal court clerk, fill it out identifying the specific records sought, get the clerk to issue it, serve it on the agency’s records custodian, and file the proof of service with the court.

Tips for Drafting and Serving Subpoenas

Here are some key tips when drafting and serving subpoenas for government records:

• Clearly identify the specific records sought – Don’t just ask for “any and all records” about a person or incident.
• Name the correct records custodian – For local/state subpoenas, identify the specific department and custodian.
• Use proper service rules – For the government entity you are subpoenaing.
• Meet any statutory deadlines – Some states require service a minimum number of days before the records are needed.
• Follow up after service – Confirm the subpoena was received and will be complied with.
• Consider narrowing the scope – If the recipient objects to a subpoena that is overly broad or burdensome.

What Happens if a Subpoena is Ignored?

If a government agency ignores or refuses to comply with a properly served subpoena, you can file a motion to compel with the issuing court. The judge can then order compliance and impose sanctions for contempt if the agency continues to ignore the subpoena. Before filing a motion to compel, reach out to the agency to understand why it is not complying and see if you can resolve the issue informally first.

Subpoenaing Government Records in Criminal Cases

In criminal prosecutions, both the defense and the prosecution can subpoena government records. Some common examples include:

• Defense subpoenas of police investigative files, forensic tests, and personnel records of officers involved.
• Prosecution subpoenas of medical records, school records, and documents showing criminal proceeds.
• Both sides subpoenaing agency records that may contain exculpatory or impeachment evidence.

The process for issuing and serving subpoenas in criminal cases is generally similar to civil litigation. But given the unique constitutional issues in criminal matters, be sure to consult criminal procedure rules and case law in your jurisdiction.

Subpoenaing Confidential Records

Some government records, like tax returns and medical files, contain sensitive personal information. When subpoenaing confidential records, special rules may apply, such as:

• Notice to the individual whose records were subpoenaed.
• In camera review by the judge before releasing records to the parties.
• Protective orders limiting use of the confidential information.
• Redaction of privileged or irrelevant information in the records.

Work closely with the court and agency custodian to ensure appropriate handling of confidential materials obtained via a subpoena.

Subpoenaing Government Employees

In addition to records, you can also subpoena a government employee as a witness. Some key points include:

• Use a subpoena ad testificandum to compel hearing/trial testimony.
• The employee may need permission from their employer to comply.
• Opposing counsel may file a motion to quash if the testimony sought is privileged or irrelevant.
• Compensation may be required for off-duty employee testimony.

Coordinate closely with agency counsel to facilitate compliance with a subpoena for employee testimony.

Using Subpoenas for FOIA Appeals

If your Freedom of Information Act request is denied, a subpoena can be a useful tool for compelling disclosure in a FOIA lawsuit. Some key tips:

• Clearly specify the records previously requested under FOIA.
• Name the agency records custodian or FOIA officer as the subpoena recipient.
• Cite the FOIA provisions allowing subpoenas in camera review of records.
• Argue the importance of the records for your FOIA appeal case.

A subpoena is no guarantee of disclosure, but it can strengthen your case and highlight the significance of the records sought from the agency.

When Subpoenas May Not Work

While subpoenas can be powerful tools, there are some situations where they may not succeed in compelling disclosure:

• Ongoing criminal investigations – Active law enforcement matters may limit records access.
• Classified/national security information – Subject to various privileges and exemptions.
• Deliberative/pre-decisional records – May be shielded under the deliberative process privilege.
• State secrets – Records whose release would jeopardize national security interests.

If your subpoena seeks these types of sensitive records, expect significant opposition from the government.

Subpoena Alternatives

If a subpoena seems unlikely to obtain the government records you need, some alternatives to consider include:

• • FOIA request – Less adversarial than a subpoena and may yield records if no litigation is pending.
  • Cooperative approach – Negotiate with agency counsel to get the records without formal demands.
  • Court order – Seek a direct court order for production of the records. This is a formal request made directly to the judge, rather than through discovery procedures. It requires showing the relevance of the records and overcoming any privileges or exemptions claimed by the government.
  • Discovery – Use discovery devices like interrogatories and requests for production in litigation. Interrogatories are written questions served on the opposing party that they must answer under oath. Requests for production allow demanding documents and records from the other side. Using discovery allows obtaining government records without needing a separate subpoena.
  • Depositions – Take depositions of government employees to ask them questions directly under oath about the records and their content. This can supplement document discovery by getting explanation and context.
  • Inspection – Request an in-person inspection of the government’s original records and documents. This allows examining the materials in detail versus just receiving copies.
  • Experts – Retain expert witnesses who can analyze and explain technical government records, like forensic or financial data.
  • FOIA – As a last resort, file a Freedom of Information Act request for the records if not successful through litigation discovery or subpoenas.

Using discovery procedures or formal court orders can compel disclosure of government records without needing subpoenas in many cases. Tailor your approach to the specific records sought and be prepared for objections and roadblocks along the way.

Here are some common objections you may encounter and strategies for overcoming them:

• • • Overly broad/unduly burdensome – Argue the importance of the records and offer to narrow the scope. Get specific about categories of relevant records.
    • Confidential/privileged – Request in camera review and propose protective order to address confidentiality concerns.
    • Privacy objections – De-identify personal information or seek individual consent to address privacy issues.
    • Does not exist/outside possession – Challenge claims that no responsive records exist through depositions or site inspections.
    • Vague/ambiguous – Offer to clarify descriptions of records sought to overcome vagueness claims.
    • Irrelevant/not calculated to lead – Explain how the records relate to the claims and defenses in your case.

Be ready to negotiate the scope of requests and file motions to compel if needed. With persistence and preparation, many government records objections can be overcome through the discovery process or via court order.