Criminal Defense Lawyers

You’ve Been Subpoenaed, Now What?

The Burning Question: Are Subpoenas Public Record?

Here’s the million dollar question – are subpoenas considered public record that anyone can access? The short answer, it depends on who issued the subpoena and what type it is. Generally speaking, subpoenas issued by a judge, court clerk, or public official like a prosecutor are matters of public record. However, subpoenas issued by private parties in a civil case are typically not part of the public court record. For example, if a prosecutor subpoenas your bank records as part of a criminal investigation, those records and the subpoena itself would likely be public and accessible by anyone. But, if your neighbor sues you and subpoenas those same bank records for the civil case, that subpoena may remain private. It’s a bit confusing, we know. But, don’t worry, we’re going to break down all the key distinctions and nuances in the following sections. Our goal is to equip you with a clear understanding of your rights and obligations when dealing with any type of subpoena.

Dissecting the Different Types of Subpoenas

Not all subpoenas are created equal, folks. The specific type can dramatically impact privacy considerations and your required response. Let’s explore the main categories:

1) Subpoena Ad Testificandum

Let’s start with a subpoena ad testificandum, or a “subpoena to testify.” This type of subpoena simply requires you to show up and give testimony somewhere, like at a trial, hearing, or deposition. Whether this subpoena is considered public record depends largely on the type of case. In criminal cases and most civil lawsuits, the subpoena would likely be public record that anyone can access. However, in certain private arbitration proceedings, the subpoena may be kept confidential.

2) Subpoena Duces Tecum

Now for the subpoena duces tecum, a “subpoena to produce documents or other evidence.” This subpoena commands you to provide certain records, data, or physical evidence. Again, the public nature hinges on the context. Subpoenas issued by government entities and courts are generally public record. But, subpoenas issued by private parties in civil cases may remain confidential and non-public. For example, if you’re subpoenaed to produce your company’s financial records in a criminal fraud case, that subpoena and your records would likely become public. However, if those same records are subpoenaed in a private business dispute, the subpoena may stay sealed and non-public.

3) Deposition Subpoenas

In many lawsuits and legal proceedings, the parties want to question witnesses long before any actual trial. This is done through depositions – question and answer sessions recorded by a court reporter. To compel a witness to appear at a deposition, they must be served with a deposition subpoena. Whether this subpoena is public or private follows the same principles as the subpoena types above. It depends on the context of the case and who is issuing the subpoena.

4) Subpoenas in Criminal Cases

In criminal cases, which are inherently public proceedings, any subpoenas issued by the judge, prosecutor, or other government officials are generally considered public record. This is based on the idea that criminal proceedings should be open and transparent to safeguard the defendant’s constitutional rights. So whether it’s a subpoena for testimony or documents, if issued in a criminal matter, it’s likely accessible to the public.

5) Subpoenas From Federal Agencies

Many federal agencies like the SEC, IRS, and FBI have the power to issue subpoenas as part of investigations. Whether these types of subpoenas are public can vary based on the specific agency’s policies and regulations. As a general rule, subpoenas issued by federal agencies in conjunction with public court proceedings would be considered public record. But, subpoenas issued during the agency’s non-public investigative phase may be kept confidential.

6) Grand Jury Subpoenas

One special category is subpoenas issued by a grand jury, which are used to compel witness testimony or request evidence as part of a criminal investigation. Grand jury proceedings are shrouded in secrecy to protect the integrity of the process. As such, any subpoenas issued in this context are kept confidential and not considered public record.

Navigating the Complexities: Key Factors

Okay, we’ve covered the major subpoena categories, but there are still some nuances to unpack regarding public accessibility. Here are a few key factors that can come into play:

The Type of Information Requested

Certain types of information are subject to heightened privacy protections, even if requested via a subpoena. This might include things like:

• Medical records
• Tax records
• Records related to a minor
• Trade secrets or proprietary business information

In these cases, the subpoena and records produced may be sealed or redacted by the court before being released publicly.

The Stage of Legal Proceedings

In many cases, subpoenas issued during the early investigation or discovery phases of a case remain private. It’s not until the matter proceeds to an actual public trial or hearing that subpoenas become part of the public record.

Court Discretion and Protective Orders

Even if a subpoena may normally be public, the court always has discretion to keep all or portions of it private. This is often done through protective orders to safeguard sensitive information or protect witnesses’ privacy. For example, the court may allow a subpoena for financial records to be public, but then issue a protective order keeping the actual records confidential and under seal.

State vs Federal Jurisdictions

While we’ve discussed general principles, you also need to be aware that public record rules and privacy laws can differ between state and federal court systems. It’s critical to understand the specific rules that apply in your particular jurisdiction. An experienced attorney is invaluable for navigating these nuances.

Receiving a Subpoena? Here’s What You Need to Know

Okay, now that we’ve covered whether subpoenas are public record in-depth, let’s switch gears. If you’ve been served with a subpoena, either for testimony or records, there are some crucial things to understand:

1) Take It Seriously

First and foremost, never ignore a subpoena. Failing to respond can potentially lead to civil or criminal contempt charges against you. That’s a headache you don’t want.

2) Read Carefully

Next, carefully read the subpoena’s instructions and deadlines for compliance. Note what records or testimony is being requested, and whether you’re allowed to object or file a motion to quash the subpoena.

3) Understand Your Options

Speaking of quashing a subpoena, this is absolutely an option if you have legitimate grounds. For example, you can object if the subpoena is overly broad, burdensome, or demands privileged information.

4) Comply or Object Timely

If you decide to comply with the subpoena, make sure to provide complete and accurate records by the deadline. If objecting, you must file a motion and litigate it promptly based on court rules.

5) Don’t Go It Alone

Finally, never try to navigate a subpoena on your own, especially if it demands sensitive personal or business records. Consult an experienced attorney to protect your rights and understand all your options.

Illustrative Examples: Public vs Private Subpoenas

To really drive home when subpoenas are considered public record, let’s walk through a few illustrative examples:

Bonus: Receiving a Subpoena for Your Business Records

If you’ve been served with a subpoena requesting your business records, some special considerations apply:

Understand What’s Being Requested

First, carefully review the subpoena to understand exactly what types of records are being demanded. Examples may include:

• Corporate records (meeting minutes, ownership records, etc.)
• Financial statements and accounting records
• Emails, contracts, and correspondence
• Employee records
• Trade secrets or proprietary data

Differentiate Public vs Confidential Records

Next, you’ll want to separate any public records the company is required to disclose from private, confidential, or privileged records. For example, your company’s articles of incorporation are public record, but private email communications may be privileged and exempt from disclosure.

Comply in a Timely, Organized Manner

For records you are required to produce, be sure to respond completely and by the deadline in the subpoena. Provide records in an organized manner with a detailed log of what is being produced.

Object if Appropriate

If the subpoena is overly broad, burdensome, or demands confidential business information, you have grounds to file objections or a motion to quash with the court.

Implement a Litigation Hold

As soon as you reasonably anticipate litigation, like receiving a subpoena, your company must implement a litigation hold. This means preserving all potentially relevant records and suspending any routine destruction policies.

Protect Trade Secrets and Sensitive Data

For any trade secrets or highly sensitive competitive data that must be produced, ask the court to issue a protective order. This will prevent the information from becoming a public record.

Consult Corporate Counsel

Finally, given the high stakes involved in a subpoena for corporate records, it’s absolutely essential to have experienced corporate counsel advising you every step of the way. Protecting your business is priority number one.

When to Consult a Lawyer About a Subpoena

Look, we get it – legal issues like subpoenas can feel overwhelming and complex. But, you don’t have to go it alone.Whenever you’re dealing with a subpoena, especially one demanding personal or sensitive information, it’s wise to consult an experienced attorney. They can help you:

• Understand the subpoena’s demands and your obligations
• Determine if any privileges or objections apply
• Navigate procedural rules and deadlines
• Argue motions to quash or modify the subpoena if appropriate
• Ensure you comply fully while protecting your rights
• Advise if the subpoena and records will become public

An attorney is your advocate, working tirelessly to look out for your best interests in any legal proceeding or investigation involving a subpoena. At the end of the day, being served with a subpoena doesn’t have to be a panic-inducing experience. With the right legal team by your side, you can respond appropriately and confidently, regardless of whether the subpoena itself is public record.