What is a Subpoena, and What Should You Do If You Are Served With One?

During a lawsuit, a party is entitled to request information and documents from the other party. That process is referred to as “discovery.” A party can send written questions to be answered by the other party (called “interrogatories”), send written requests for documents from the other party and/or to inspect things (e.g., property) (called “requests for production”), and send written requests asking the other party to admit certain matters relevant to the case (called “requests for admission”).

In addition, a party can secure documents from people or businesses that are not parties to the lawsuit. This is accomplished by the issuance of a subpoena. Generally, subpoenas fall into two categories:

  1. A subpoena commanding a person to appear and give testimony at a deposition or a trial; and
  2. A subpoena commanding a person to produce documents (often referred to as a “Subpoena Duces Tecum”).
  3. In South Dakota, a subpoena is typically issued by the attorney for one of the parties; however, subpoenas may also be issued by clerks of courts, judges, magistrates, and certain other public officers or agencies. Once issued, a subpoena must be properly served on the person or business. This can be accomplished by having the subpoena personally served by a Sheriff’s Department or a private process server, or by mailing a copy of the subpoena to the person and having the recipient sign a document admitting service of the subpoena. Unless the subpoena is issued by the State of South Dakota or one of its political subdivisions, it must be accompanied with a payment “for one day’s attendance and the mileage allowed by law.” SDCL 15-4-56(c). If the subpoena is not properly served, or if the subpoena is not accompanied by the required fee, the subpoena may not be valid and enforceable.
  4. Importantly, there are protections for a person served with a subpoena. If a subpoena is unreasonable or oppressive (such as commanding the production of an overwhelming number of documents, or documents that contain trade secrets or other confidential information), the recipient is permitted by statute to ask the court to quash (i.e., void) or modify the subpoena.

If you are served with a subpoena, here are some helpful tips:

  1. Take the matter seriously. A valid subpoena carries the authority of the court; therefore, you may be held in contempt if you fail to obey the subpoena without adequate excuse.
  2. You should consider promptly contacting an attorney and discussing how to proceed with regard to appearing to give testimony and/or gathering and producing the requested documents. When consulting with the attorney, advise him/her of the manner by which you were served with the subpoena and whether the subpoena was accompanied by the required fee, and also discuss any concerns you have about producing any requested documents.
  3. If you elect to proceed on your own, you should appear at the date/time stated in the subpoena and give testimony and/or you should make your best efforts to gather and produce the requested documents.
  4. If the subpoena only seeks the production of documents, you might consider contacting the attorney that issued the subpoena to discuss the easiest way for you to provide access to and/or copies of the requested documents, such as by providing a flash drive containing the documents instead of printing hundreds of pages.
  5. If you are served with a subpoena and would like to speak to an attorney, call the attorneys at Thomas Braun Bernard & Burke, LLP. We can help.