Updated August 2007
Subpoenas
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Subpoenas
Part 1: Guidelines and Forms for Responding to Subpoenas
Part 2: Information on Subpoena Laws
Guidelines for Responding to a Subpoena for Documents
1. Notify Legal and provide them with a copy of the subpoena. (Contact David Drooz, 515-1006, FAX 515-3060.)
2. Student records : if the subpoena asks for student records, you must usually notify the student several days prior to providing the documents. This gives the student time to file a motion with the court to block the subpoena, if he/she cares to do so. Notice to Student of Subpoena
In certain law enforcement subpoenas, you may be asked to keep the subpoena confidential, in which case you would not notify the student (check with Legal).
3. Personnel records: most records about state employees are confidential and cannot be released without a court order (signed by a judge or magistrate). A subpoena is not sufficient.
4. Other records : confer with Legal on whether the records are private and how to respond to a subpoena.
5. Normally you will send the records to the Clerk of Court for the county from which the subpoena issued. (Different procedure for federal and out of state courts - check with Legal.) NOTE: a law firm will often ask you to send them the records. We do NOT do this -- the law says to send the records to the Clerk of Court. (It is OK to send to the law firm/attorney if the records are public documents being provided pursuant to a public records request, or if the student or employee who is the subject of the records gives a written consent.)
6. If you don't have the records described in the subpoena, send an affidavit to that effect to both the attorney who signed the subpoena and the Clerk of Court.
7. When responding to a subpoena, send the records to the Clerk of Court by registered or certified mail, return receipt requested.
a. Attach a copy of the subpoena.
b. Attach your affidavit certifying the authenticity of the records (see form below).
c. If any of the subpoenaed records are confidential under FERPA (student privacy) or other laws, attach a letter explaining the confidentiality to the Clerk of Court. A sample is provided below.
8. Notify the attorney who issued the subpoena that you have provided the documents to the Clerk of Court. Do this in writing and keep a copy. If the attorney has questions or concerns, refer him or her to the NC State attorney.
Forms:
Affidavit [MS Word] | Confidentiality Cover Letter [MS Word] | Copy of N.C. Gen. Stat. § 1A-1, Rule 45 (2007) [MS Word] | Notice to Student of Subpoena [MS Word]
* Important Note: Legal Affairs can only advise individuals with subpoenas received concerning matters within an individual's scope of employment as an employee of the University. For any personal matters or subpoenas requesting information outside the scope of employment, University employees should seek private legal counsel. *
I. General Information About Subpoenas
II. Three Important Initial Facts to Determine
III. General Steps to Take for Federal and North Carolina Subpoenas
3. Check for control of what is requested
4. Is confidential information requested
5. Are their other objections to the subpoena
IV. Subpoenas From Other State Courts
I. GENERAL INFORMATION:
1. What is a "subpoena"?
Although typically filled-out by an attorney, a subpoena is an official request issued from a court. A judge may find an individual in contempt of court for not complying with a subpoena. A subpoena is binding if:
i. the subpoenaed individual receives proper personal service and
ii. there are no objections or reasonable excuses not to comply with the request and
iii. the subpoena is issued under authority of a court or agency with statutory authority to issue subpoenas to persons in North Carolina.
2. What can be requested in a subpoena?
A subpoena may require the individual to do any or all of the following:
a. Testify at a trial, hearing, or other judicial proceeding;
b. Produce records including papers, books, or other physical items, or stored electronic information including email, files, activity logs, and data;
c. Appear at a deposition for questioning before trial and/or produce documents at the deposition.
3. What grounds are there to block a subpoena?
A person may object to a subpoena and asked that it be quashed by a judge. A "motion to quash" is a request that a judge nullify or cancel the subpoena. Typically Legal will negotiate with the attorney who issued the subpoena if it is unduly burdensome or otherwise objectionable. Important grounds for opposing a subpoena include:
a. Privileged or confidential information - If the request is for student records (see FERPA and other rules ), medical records, personnel files , counselor-student communications, attorney-client communications, confidential research, or other protected materials, the subpoena may be quashed or may be subject to a protective order.
b. The subpoena is too vague - If the subpoena is so vague or global as to what records it requests, the recipient may object or negotiate for narrower terms with the attorney who sent it. (See Fed. Rule Civ. Proc. 45(b)(1) , Fed. Rule Crim. Proc. 17(d) ; N.C.G.S. 1A-1, Rule 45 (e) ),
c. Inadequate time to respond. This sometimes happens with requests for student records because the University must notify the student (or former student) first. A subpoena that does not allow a reasonable time for compliance may be objected to or a different response time may be negotiated.
( Fed. Rule 45 (c)(3)(A)(i) ),
d. Burdensome travel. If t he subpoena forces the individual to travel too far, there are grounds for objection. (See Fed. Rule 45 (c)(3)(A)(ii) )
e. Where undue burdens or "adequate excuse" exist for non-compliance, the recipient may be able to object to or negotiate change to the subpoena.( N.C. 1A-1, Rule 45(c)(3) ).
*Even if a subpoena is clearly objectionable or invalid, it is always safe to officially object or make a motion to quash to protect from contempt of court charges. At the least, the attorney who issued the subpoena should be notified of the defect in the subpoena.
II: IMPORTANT FACTS TO DETERMINE WHEN SUBPOENAED:
The rules for subpoenas vary on the type of case (criminal or civil) and the issuing authority (state court, federal court, administrative agency). The most important initial aspects to determine when first receiving a subpoena include:
a. What does the subpoena request (testimony, deposition, or production of documents)?
b. What court issued the subpoena (federal, North Carolina, another state court, or an administrative agency/commission)?
c. What type of case did the subpoena stem from (civil or criminal)?
**Let Legal Affairs do this analysis -- provide them with a copy of the subpoena as soon as you receive it.**
III. GENERAL STEPS TO TAKE FOR SUBPOENAS FOR DOCUMENTS
FROM FEDERAL OR NORTH CAROLINA COURTS:
1. Check how the service was rendered:
a. For federal subpoenas , some courts hold that there must be personal hand delivery of the subpoena to the individual named in the subpoena. Other courts allow service by certified mail. This rule applies for both civil cases (see Fed. Rule 45 (b)(1) ) and criminal cases (see Fed Rule 17 (a) ).
b. For North Carolina subpoenas, service may be rendered by personal delivery of the subpoena to the recipient, or by certified or registered mail, return receipt requested ( N.C. 1A-1, Rule 45 (e) and ( N.C.G.S. 15A-802 ). Telephone service is valid for subpoenas to compel attendance of a witness at a trial (but not for production of documents) if the call is made by a sheriff or sheriff's designee.
2. Check for jurisdictional limitations :
a. Federal civil subpoenas are only valid if served:
i. Within North Carolina if it was issued by a federal district court in North Carolina ( Rule 45 (b)(2) ), or
ii. Outside of N. C. but within a 100 miles from the place selected for the individual to produce the documents (see Rule 45 (b)(2) ).
*IMPORTANT NOTE: One federal district court may issue a subpoena and gather evidence to be used in a different district court. Thus, the issuing court does not have to be the same court in which the case is pending (see Fed. Rule 45 (a)(2) ).
b. For federal criminal subpoenas, there are no jurisdictional restrictions. Unlike the federal civil cases, service may be rendered anywhere within the United States, without geographical limitation ( Rule 17 (e)(1 )).
c. For all North Carolina criminal and civil subpoenas , any state court in N. C. can issue and serve a valid subpoena to any person within the state. However, the rules for depositions differ. Contact Legal Affairs concerning depositions.
3. Does the person named in the subpoena have control of the documents :
a. In all federal cases , if you do not have control of the documents, you should object by notifying the requesting party.
b. In all North Carolina cases , for any requests for public records or medical records, if the custodian lacks custody of the requested documents, the custodian must send an affidavit stating lack of custody to the court (see Rule 45 (c) ).
4. Does the subpoena request confidential information:
For all subpoenas , if any confidential records are requested (including student records, medical records, personnel files, etc.) the procedure for responding may be affected by the specific statutes concerning that type of record. You may file a motion to quash the subpoena, or seek a protective order, if the subpoena requests privileged or confidential information. Under the statutes, you may also have to give notice to the student or employee who is the subject of the records. Improperly disclosing confidential information could harm the University's case if the University is a party, and it could create possible civil liability.
5. Is the request otherwise objectionable:
Generally, a subpoena is objectionable if it is "oppressive or unreasonable" (see Rule 17 of Federal Crim. Proc. and N.C. Rule 45 (c)(1) ).
6. Making objections or motions to quash :
a. For all federal cases , any objections should be made in writing within 14 days after service or before the date requiring production of documents ( Rule 45 (c)(2)(B) ). Objections should be made directly to the party or attorney requesting the subpoena ( Rule 45 (c)(2)(B) ). The attorney may then modify the subpoena or seek a court order for the documents. A motion to quash should be made to the issuing court soon after receiving the subpoena.
b. For all North Carolina courts , a person must make an objection to the issuing attorney, or a motion to quash directly to the court, within 10 days of service of the subpoena (or before the time specified in the subpoena to comply if that time is less than 10 days). ( N.C. Rule 45(c) ).
7. Complying with the subpoenas that require production of documents :
a. For federal civil cases, the individual does not need to appear in person at the place of production (see Rule 45 (c)(2)(A) ), but may either:
i. personally deliver the documents at the time and place stated in the subpoena or
ii. determine some other means, such as registered mail, to transport the documents to the place described in the subpoena on or before the date due.
The records must also be produced as they are kept in the normal course of business or the records must be categorized as the subpoena requests ( Rule 45 (d)(1) ).
b. For federal criminal cases , generally documents should be delivered directly to the court where they may be inspected and copied by both parties. Documents requested are not sent to parties directly under subpoena, but are sent to the court itself (see Fed. Rule 17(c) ).
c. For North Carolina courts , if the subpoena requests public or medical records (as defined in N.C.G.S. 8-44.1 ), the custodian of the records does not need to hand deliver the records, but may follow these steps ( see Rule 45(c) ):
i. For confidential records, give notice to the student or the subject of the records so that they may object (see the statutes that cover the type of records);
ii. Make copies of the records requested;
iii. Make a copy of the subpoena;
iv. Sign an affidavit to authenticate the records
v. If the documents are public records , mail the records, a copy of the subpoena, and the affidavit directly to the issuing court by registered mail.
vi. If the documents are medical records , mail the records, a copy of the subpoena, and the affidavit to the presiding judge by registered mail. Confer with Legal as some medical records may require special procedures.
IV. SUBPOENAS FROM OTHER STATE COURTS:
1. Civil Cases:
For civil cases, other state courts generally lack the jurisdiction to bind individuals located out-of-state. Thus, a person served a subpoena in North Carolina by an out-of-state court is generally not bound to appear or turn over documents. Notwithstanding the general rule, North Carolina and other states have procedures for issuing subpoenas for evidence to be used out-of-state (see N.C. Civil Procedure Rule 28(d) ). To request a witness to appear for a deposition, which may also include the production of documents, an out-of-state party must go to a judge in the North Carolina county where the resident lives or works. The party must present to the North Carolina judge a commission, order, consent, or other authority under which a deposition must be taken. The North Carolina judge then issues the subpoena under the same conditions as the N.C. Civil Procedure Rule 45. Thus, in order to be binding the subpoena must come from a North Carolina court, not the out-of-state court, even if the evidence will be used in another state. Any objections or motions to quash the subpoena should be made as under N. C. Rule 45.
There also may be times when the North Carolina recipient of the subpoena has subjected himself to the jurisdiction of another state through his actions.
2. Criminal Cases:
For criminal cases, similar to civil cases, all state governments have agreements that may make subpoenas for appearances binding on residents (see N.C.G.S. - 15A-812 ). In North Carolina, the non-North Carolina court must certify to a N.C. court that a person in N.C. is a material witness in a criminal case. The North Carolina court then holds a hearing to determine if the subpoenaed person is a material witness and that the witness will not suffer an undue hardship by appearing in the out-of-state court.
Similar proceedings may occur for the production of documents. However, it is again important to note a subpoena directly from a different state court will not be binding without first having a hearing in a North Carolina court to determine the necessity and materiality of the evidence being requested.
For specific questions or further information on specific subpoenas, contact the Office of Legal Affairs.