Update on Out of State Subpoenas–Notes from real life
We had a chance to use the new statute, and here is our experience, with some practical tips which may help to make the process more effective for other attorneys.
We subpoenaed records from Virginia. The first task was to call the court in the county where the subpoenas were being served. We learned that the court was quite familiar with the process, and gave us instructions on how to file a subpoena with their court, and informed us that further instructions were also on their website. We did as we were instructed–except for one error noted below. We received responses from two entities: one, a bank, informed us they had no records of the accounts we requested. Another, a credit card company, responded with a long legal letter, and concluded with an instruction to contact their subpoena compliance division. We did not hear back from the third subpoenaed party, a large corporation.
We called the large company, and after being transferred to several departments, they told us they were not aware of any subpoena. Finally, we called the Virginia court, and were told the subpoena had been returned to the court by the sheriff’s department because it did not have a service copy. Since we always send service copies, and since the other parties had been served, and thus must have had service copies, this was a puzzle. The further puzzle was why the court did not notify us. We were informed that we needed to send an additional fee for the court to notify us of the error–something the court did not tell us when we first called. We then sent another subpoena and a service copy per the court’s instructions. We then kept calling the court and the sheriff’s department, but no one seemed to know where the second subpoena was. The court clerk said it had been sent over to the sheriff, and the sheriff’s department said they did not have it. We found out that the sheriff’s department was in the same building as the court, so this was yet another puzzle. Finally, the mystery was (sort of) cleared up. Part of the problem was that there was an additional fee for service by sheriff–and that was our mistake, as the court’s website spelled that out. So, without the additional fee, the second subpoena did not actually reach the sheriff. The first subpoenas had been sent to the sheriff despite the fact we did not pay the additional fee, and the sheriff served the first two entities. But the time we had sent the second subpoena, someone had realized that we had not paid the additional fee for sheriff service. In any case, since time was running out, I pleaded with the sheriff’s department to serve the large company anyway. They did.
The legal department of the large company called me right away. By the time they were served, the time tlimit on the subpoena was too close to respond in time. I asked if they could fax some of the information to us (we were scheduled for a hearing in a few days). They agreed. And in fact, we received all of the records, certified, by snail mail, and in time for court.
The lessons we learned from the experience:
1. Large companies are familiar with subpoena requirements, and will respond promptly to an out of state subpoena–something that small Vermont and New Hampshire business entities do not always understand, in my experience.
2. You should contact the court and service processor early and often to make sure you are doing everything necessary to have the out of state entities served properly.
3. If there is a problem, let the court or service processor know what your problem is. Most people are sympathetic and want to be helpful.