Motions to Compel After Refusing to Comply With a Federal Subpoena

Motions to Compel After Refusing to Comply With a Federal Subpoena

Getting a subpoena can be scary. You may not want to share private information or testify about something you know. But ignoring a federal subpoena can lead to big trouble – even jail time! This article explains what happens if you refuse to comply with a subpoena and how the other side can file a motion to compel you to cooperate.

What is a Subpoena?

A subpoena is a legal order requiring you to appear and give testimony or produce documents. There are two main types:

• A subpoena ad testificandum orders you to appear and give testimony.
• A subpoena duces tecum requires you to produce documents or other evidence.

Subpoenas are used in both criminal and civil cases. They are issued by the court or an attorney involved in the case. You are legally required to comply unless you have a valid reason not to.

What Happens if You Ignore a Federal Subpoena?

Ignoring a federal subpoena is a big mistake! The party that issued it won’t just forget about you. Here’s what could happen:

1. The other side will file a motion to compel. This asks the judge to order you to comply.
2. If that’s granted, you’ll get a court order requiring you to testify or produce documents.
3. If you still refuse, you could be held in contempt of court. This can result in fines or jail time.

Motion to Compel

If you refuse to comply with a subpoena, the first thing that will probably happen is the other side will file a motion to compel. This asks the judge to order you to comply with the subpoena.

Requirements for Filing

Under Rule 37(a) of the Federal Rules of Civil Procedure, a motion to compel must:

• Certify that the party has tried in good faith to resolve the issue without court action
• Be filed in the court where compliance is required – the “compliance court”

So before filing the motion, the attorneys should contact you and try to work it out. Maybe you’re willing to testify about some things but not others. Or you’ll provide some documents if certain confidential info can be redacted. If you flat out refuse to comply at all, then they can file the motion.

What the Motion Requests

The motion to compel will ask the judge to order you to comply with the subpoena. This usually means:

• Testifying at a deposition, hearing, or trial
• Producing requested documents or physical evidence

It asks the court to force you to cooperate over your objection. The motion will explain how your testimony or the documents are relevant to the case. It has to convince the judge that the information is important enough to override your objections.

Your Response

You will have a chance to file a response opposing the motion to compel. You can explain why you don’t think you should have to comply. Some common reasons include:

• The subpoena requests privileged information
• It would be unduly burdensome
• The information requested is not relevant to the case

If the judge agrees with your arguments, they may quash or modify the subpoena so you don’t have to comply. If not, the judge will probably order you to testify or turn over the documents requested.

Court Order and Sanctions

If the motion to compel is granted, the judge will issue a court order requiring you to comply with the subpoena. This makes it mandatory. If you violate the order, you could face sanctions from the court.

Under Rule 37(a), the court can also make you pay the other side’s expenses from having to file the motion. This includes attorney’s fees. So ignoring the subpoena ends up costing you money.

Contempt of Court

If you continue refusing to comply after the court grants a motion to compel, the party can ask the court to hold you in contempt. This is very serious.

What is Contempt of Court?

Contempt of court occurs when someone deliberately disobeys a court order or interferes with court proceedings. This shows disrespect for the court’s authority. Penalties aim to discourage this behavior and enforce court orders.

Under 18 U.S.C. § 401, federal courts have power to punish contempt “by fine or imprisonment, or both.” Each day of contempt is a separate offense.

Types of Contempt

There are two main types of contempt:

• Civil contempt – failing to obey a court order. The purpose is to compel compliance.
• Criminal contempt – interfering with court proceedings in an insulting or disrespectful way. This aims to punish the contemptuous behavior.

Ignoring a subpoena after losing a motion to compel is civil contempt. The court is trying to force you to comply with its order requiring compliance.

Penalties

Penalties for contempt can include:

• Fines – up to $1,000 for civil contempt; no limit for criminal
• Imprisonment – up to 6 months for civil; longer for criminal
• Attorney’s fees – you may have to pay the other side’s legal fees

In civil contempt, you can “purge” the contempt by complying with the court’s order. For example, testifying at a deposition after initially refusing. You may still have to pay fines and attorney’s fees though.

Criminal contempt penalties are not conditional. You can’t purge the contempt; the punishment is fixed.

Strategies for Avoiding Contempt

Here are some tips to avoid being held in contempt if you get an unfair or unreasonable subpoena:

1. Negotiate – Contact the attorney who issued it and try to compromise on scope. Maybe you can provide some documents but not all.
2. File a motion to quash – This asks the court to invalidate the subpoena. You must show it requests privileged info, is irrelevant, or is unduly burdensome.
3. Comply partially – If the judge grants a motion to compel, produce some of the requested documents but assert privilege for others.
4. Appeal – You can appeal a motion to compel if the lower court abuses discretion. This delays compliance.
5. Request a stay – Ask the court to temporarily halt the order compelling compliance while you appeal it.

With the right legal strategy, you can often avoid being held in contempt for refusing to comply with an improper subpoena. But ignoring it altogether is risky. The court has power to impose fines and jail time to enforce compliance.

In sum, dealing with a federal subpoena takes finesse. Get a lawyer to ensure you protect your rights without committing contempt of court. With the stakes so high, legal advice is critical.

References

Here are some helpful resources on motions to compel and contempt of court:

• Enforcing a Subpoena (Federal) – Weil, Gotshal & Manges LLP
• Rule 45. Subpoena | Federal Rules of Civil Procedure | US Law – Law.Cornell.Edu
• b. Motion to compel Archives – The Reporters Committee for Freedom of the Press
• [PDF] Administrative Law Judge’s Order Denying Motion to Compel Nonparty to Comply with Subpoena – Federal Trade Commission
• Ignoring Federal Subpoena and Contempt | 18 U.S.C. § 401
• What Happens if You Ignore a Subpoena? – Federal Lawyer