Good morning,
Can a supeona be a bad supeona if my name is spelled wrong and has changed by marriage a month before the supeona was issued? the supeona is to attend a hearing to testify in a case that will be against my husband by the state which is trying to take away my spousal privilege in a case.
Once you've been served, you've been served.
There are THREE possible issues sufficient to cause the subpoena to be improper.
These are examples of potential objectionable procedural and substantive defects:
1 = Lack of personal service: In order to be valid, a subpoena generally must be served in person by a non-party adult and not by any form of mail, fax or alternative service
2 = Witness fees & mileage costs: The tendering of witness and mileage fees for a subpoena seeking the testimony of a witness generally is mandatory in order to have a valid subpoena. However, such fees are not required for subpoenas that seek only documents
3 = After discovery deadline: Several courts have concluded that after discovery closes, a subpoena cannot be used to obtain information that could have been produced during discovery
4 = 100-mile rule: In most jurisdictions, a civil subpoena may be quashed if it requires a witness to travel or produce documents more than 100 miles from that person's residence, place of employment or business
5 = Unreasonable response time: A subpoena that "fails to allow reasonable time for compliance" may be quashed. Although within the court's discretion, a subpoena that seeks numerous records with only one week's notice is generally considered to be unreasonable.
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Substantive objections to a subpoena could include the following:
1 = Relevancy: A subpoena is valid only if the information sought is relevant to the subject matter and reasonably calculated to lead to the discovery of admissible evidence. The fact that the information may be inadmissible at trial does not make it irrelevant.
2 = Undue burden and expense: A subpoena can be quashed or modified if compliance will cause an "undue" burden or expense on the witness. What constitutes an "undue" burden or expense is a question for the court and requires specificity, not general allegations.
3 = Lack of possession, custody or control: A subpoena can only seek the production of documents that are under the "possession, custody or control" of the witness. Some courts have construed this phrase to include not only actual possession, but also documents that a witness can obtain on demand, such as bank records.
4 = Trade secrets and confidential information: A subpoena seeking trade secrets or confidential information may be quashed unless there is a substantial need for the information that cannot otherwise be met without undue hardship. The documents will then be produced only in accordance with a protective order that restricts or limits disclosure
5 = Privileges: Although most witnesses are aware of attorney-related privileges, there are many other privileges that may render a subpoena objectionable. Some jurisdictions have adopted an accountant-client privilege that protects communications to and from one's accountant from disclosure. Also, the quality or peer review privilege prevents disclosure of health care provider records that have been prepared in connection with the quality review of physicians, nurses and other staff, and the self-critical analysis privilege is designed to encourage companies to engage in open investigations of their own possible wrongdoings. Not all jurisdictions have adopted these privileges and many federal courts have refused to recognize them. Nevertheless, privileges represent an important basis to object to a subpoena and can be waived if not asserted in a timely fashion.
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Once you have determined what POTENTIAL objections exist to a subpoena, you must present those objections.
There are two ways in which to present our objections.
First you serve a written list of all objections NO LATER than 14 days after service of the subpoena or before the time specified for compliance.
If you don't have 14 days period, you appear for the singular purpose of petitioning the court to hear YOUR objections.
At that point, no further inspection of any requested documents can be made except pursuant to an order of court, which protects you from "significant expense" resulting from the inspection or copying commanded. Failure to serve timely written objections ordinarily results in a waiver of all objections, including privilege.
A witness may protect himself from an improper subpoena by filing a "timely" motion to quash or modify.
A motion is "timely" if it is made at any time prior to the compliance date.
TAKE NOTE OF THIS, OP: Although modifying a subpoena seeking documents is common, it is rare to quash a subpoena seeking testimony from a witness.
However, where it is clear beforehand that the subpoena seeks confidential business information that is irrelevant to the proceeding, it is an abuse of discretion not to quash the subpoena.
3. Comply
The last step that you must take in responding to a subpoena is to comply with those aspects that are not objectionable. A person subject to a subpoena is obliged to obey it. Failure to abide by a subpoena without "adequate excuse" may result in a finding of contempt and the imposition of fines and costs. Also, the court may issue a bench warrant in order to compel compliance.
The steps outlined above will help to reduce the risks or other serious consequences of ignoring or blindly complying with a subpoena. Moreover, following these steps, together with the advice set forth in parts I and II of this series, will enable you to properly respond to any subpoena that may be served upon your company in the future.
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Usually the above is too complex to be attempted by a layperson.
Petitioning a court to quash a subpoena involves archaic motions and civil procedure.
Don't fail to appear because you disagree the subpoena to be defective.
As noted above, that argument must be made before the judge issuing the subpoena.
If you are less than enthusiastic about appearing, that dog ain't gonna hunt, so disabuse yourself of that notion and appear.
Last comment, talk to a local lawyer for further guidance, counsel, and instruction on this matter.
DISCLAIMER: None of the above information and/or knowledge shared is legal advice. Although I am a licensed lawyer in Texas and other states, I am NOT licensed to practice law in Maryland.
