Responding to Subpoenas – By: Wendy Kasten

Published by MoASBO, February 2012

More and more these days, school districts and/or their employees are being served with subpoenas.  More often than not, responding and complying with these subpoenas can be confusing, time consuming, and burdensome.  While in some cases your school district will need to obtain legal advice about compliance with a subpoena, having some basic information about subpoenas can help your district determine the best and easiest way to respond to them.

What is a subpoena?

Generally speaking, a subpoena is a document that commands an individual or entity to appear at a specified time and place to provide testimony and/or produce documents.  A subpoena states the name of the court or administrative body that issues it and should also have the caption or style of the case and case number on it.  The person or entity that is properly served with a lawful subpoena, must respond to the subpoena in the time specified.  Failure to respond to a lawful subpoena can result in being held in contempt of court.

Proper Service of a Subpoena
When a subpoena is issued out of a Missouri state court, it must be personally served on the party or entity receiving the subpoena by a sheriff or a sheriff’s deputy, or any other person who is not a party to the underlying case and is not less than eighteen years of age.  Service by mail is not proper.  The recipient of a subpoena may be entitled to mileage and/or witness fees for their appearance to testify.  For example, in a subpoena issued pursuant to a civil suit in Missouri, when a witness has to travel greater than forty miles from his or her place of residence, that witness is entitled to mileage and a nominal attendance fee (twenty-five dollars per day).  Required witness fees and mileage fees should be served along with a copy of the subpoena.

Practical Tips for Responding to a Subpoena

If a subpoena requires a witness to appear and provide documents, find out if the appearance is necessary.  Often, an attorney for the party who issued the subpoena will agree that the witness does not need to appear in person, so long as the requested documents are produced along with an affidavit verifying that the documents are authentic.  The affidavit is usually referred to as a business records affidavit.  Under recently revised Missouri rules for subpoenas in civil cases, the party responsible for issuance of the subpoena is responsible for advising in writing of an agreement that the witness will be excused from appearance at a deposition.  This means that if such an agreement is reached, your district should receive written confirmation of the agreement in writing from the party or attorney responsible for issuing the subpoena.

Pay attention to deadlines.  Be mindful of the date a witness is required to appear and/or produce documents and don’t miss the date.  Don’t wait until the last minute to try and comply with a subpoena.  Extra time may be needed to obtain the requested documents, or notify certain parties that documents will be produced.  Upon request, an attorney may agree to more time to produce documents requested by a subpoena, but an extension is not guaranteed.

Obtain and keep written confirmation of agreements regarding compliance with the subpoena.  If an attorney agrees that a witness does not need to appear, or to extend a deadline for production of documents, but sure to get written confirmation of that agreement.

Objecting to a Subpoena

There may be reasons why your district may wish to object to a subpoena.  For example, the subpoena may give an inadequate amount of time to comply.  Time specifications can vary according to the jurisdiction the subpoena is issued from.  A subpoena issued in a Missouri civil case to appear for a deposition must give the witness seven days notice and if the subpoena is requiring production of documents, at least ten days must be given to produce the documents.  The Missouri rules for subpoenas in civil cases also state that a party or attorney responsible for the issuance of a subpoena “shall take reasonable steps to avoid imposing undue burden or expense on a non-party subject to the subpoena.”  If the subpoena places an undue burden or expense on your district to comply then your district may want to object for that reason, or request relief from the court such as asking that the court require the party who issued the subpoena to advance the reasonable cost of producing the documents.

If your district wants to object to a subpoena for any reason, it should contact its legal counsel.  Depending on the rules in the jurisdiction in which the subpoena was issued, if a subpoena requesting documents is objectionable, the attorney may be able to prepare and serve written objections to the party issuing the subpoena, stating the specific reasons why the subpoena should be set aside or modified.  The attorney may also file a “Motion to Quash” the subpoena, which typically asks the court or administrative body that issued the subpoena to modify or set aside the subpoena based on certain objections. If the documents being requested are confidential, the attorney may also recommend obtaining a protective order before producing the documents.  A protective order can provide that only certain individuals get to obtain the information that is produced.  If the subpoena requests information that is highly confidential, such as employee personnel records, the district should consult with its attorney before complying.

What about FERPA?

The Family Education Rights Privacy Act (“FERPA”) contains a specific exception for subpoenas.  Under FERPA, an educational agency or institution may disclose personally identifiable information from an education record of a student without consent, if the disclosure is to comply with a lawfully issued subpoena.  However, before complying with the subpoena, the educational agency or institution, in most cases, must make a reasonable effort to notify the parent or eligible student of the subpoena.[1] This allows the parent or eligible student time to object to the subpoena and seek protective action if they wish to do so.  When producing the documents requested regarding a particular student, be careful that no personally identifiable information about other students is produced.

Also, your district should keep in mind that subpoenas can request documents that are not necessarily education records as defined by FERPA.  For example, while private notes about a student that are taken and kept by a school official and not accessible to others may not be part of the student’s education record under FERPA, if the notes are requested pursuant to a lawful subpoena, they must be produced, absent any legitimate legal objection.

Educate Your Employees.

All school district employees should know that if they receive a subpoena that requests documents or testimony related to the school, or students or employees of the school, they need to immediately notify the superintendant.  The requirement to notify the superintendant should be included in the employee handbooks and employee training.

When in doubt about proper compliance with a subpoena, seek legal advice.

If you have questions or concerns regarding a subpoena or compliance with a subpoena, contact your legal counsel.

[1] Prior notice is not required if the subpoena is a federal grand jury subpoena or a subpoena issued for a law enforcement purpose and the court or issuing agency has ordered the existence or contents of the subpoena or the information furnished in response to the subpoena not be disclosed.

© 2012 Mickes Goldman O’Toole, LLC

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