Do I have to comply with an out-of-state subpoena?

by Rebecca on May 13, 2015

I hear this question a lot. The answer is, “maybe.” The next shortest answer I can give is that, although a witness has no excuse to ignore a subpoena based simply on the fact that the case is pending outside the state where the witness lives, you do not need to automatically comply with the subpoena. Be proactive and analyze the subpoena.

Both federal and Georgia law allow parties in cases pending in other states to obtain testimony and documents from nonparty witnesses outside that state. This is the case even you think you don’t have anything relevant to add to the case; courts gives parties a lot of leeway to seek testimony and documents.

But this does not mean you have to automatically comply with the subpoena. Your response to an out-of-state subpoena, like any other subpoena, can only be formed after considering several factors.

How can a court in another state tell you what to do?

Rules in both federal and state courts have procedures allowing parties to seek documents or testimony from nonparties in other states. Under Rule 45 of the Federal Rules of Civil Procedure, federal subpoenas in civil matters can be issued by attorneys and served on witnesses even outside the state where the federal matter is pending. And those subpoenas can be enforceable in Georgia federal courts–if they are validly served.

States have adopted a variety of rules to allow parties to seek testimony and documents. For example, Georgia has adopted a version of the Uniform Interstate Depositions and Discovery Act (UIDDA). I’ve discussed this process in an article and subsequent posts. For a state-court case you need a subpoena signed by a Georgia clerk—the attorney from the other state cannot serve a subpoena signed by an Alabama clerk or attorney, for example. Such a subpoena should not be enforceable in a Georgia court.

There are even circumstances where a subpoena can be issued for an arbitration pending outside Georgia.

How can you tell if it is a valid subpoena?

Valid subpoenas are enforceable by courts—a judge could hold you in contempt if you fail to comply. But you don’t have to automatically comply. The threshold question is whether you were properly served with a valid subpoena. Your state’s laws must be followed. Was it properly served? Should it have a witness fee with it? Was it actually issued by the clerk properly? You may want to have a lawyer to review the subpoena and give you an opinion on that subpoena.

If it’s valid, there are still creative responses.

Negotiation may be able to cure any concerns you have. Is the deposition date inconvenient? It could be changed. Is it too costly to produce the documents requested? An attorney could help you negotiate a change in the scope of documents. Or the party seeking the documents may agree to pay your costs in producing the information.

If negotiation is not an option, then you could either serve objections or file a motion for a protective order. The applicable rules may also impose a deadline for serving or filing objections or a motion for protective order. The best course will depend on whether it is a federal or state subpoena and whether documents or testimony or both are sought. Finally, no analysis is complete without looking at the claims and facts in the underlying case and your connection to that case. Hiring an attorney can help you with these procedures. What should an attorney ask you? Read my post Served with a subpoena? Here’s what I’ll ask you.

Whatever your response is to the subpoena, ignoring it without any analysis is the worst response.

If you were served with a subpoena in Georgia, I can give you an opinion on whether it is a valid subpoena and what options you have. Contact me today–let me know the parties involved and we can discuss how I can help.

Note: this post was originally published Jan. 13, 2011, but has been updated to follow changes to federal and state law.

{ 2 comments… read them below or add one }

Rebecca Phalen October 15, 2015 at 8:14 am

I hate to say it, but it depends. I would need to know more: where and how the subpoena was served; is it a state or federal matter; is it a burden for the subpoenaed person to comply? For an individualized answer, I offer services at a flat rate to advise on subpoenas.

Jewl D. September 24, 2015 at 8:45 am

If someone is subpoenaed in Georgia, but already moved out of state before it was issued, do they have to comply?

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