What to do if a Subpoena Arrives at Your Door

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Monday, March 12, 2012

Leonardo Angiulo, GoLocalWorcester Legal Expert

Owning your own business comes with a million headaches. There are bills to pay, new business to develop and money to collect. Sometimes, given the pace you have to keep making it all happen, invoices and service contracts boil down to a couple notes on a slip. And those notes might even be written in pencil. What I want you to consider is taking the additional time necessary to keep clear records and why it is important.

Now, I think we can all agree that the future of our local economy relies on small business owners. Look at the success of upper Main Street. There are a series of store fronts either full or being renovated to accommodate individuals who want to earn a living for themselves. Attend any function of the Worcester Chamber of Commerce and speak to the attendants. A majority will tell you they either are owners or work for local businesses. And to those hard working members of our community I say that I am not trying to make more work for you.

I am, however, trying to help you plan for a very real contingency: a subpoena for records issued by a local law firm or the court. The technical term for this request is a subpoena deuces tecum. This is a latin phrase that roughly translates into “give up the stuff or there will be trouble.” These subpoenas can be issued to businesses that hold physical evidence, relevant to an ongoing case, who are not parties to the lawsuit. If you get one, it probably happened because at some point during the pretrial stages of a case someone figured out that either the plaintiff or defendant had an interaction with your business that sheds light on some aspect of the lawsuit.

For example, in a construction litigation case the records of a tile retailer might be relevant to whether a contractor purchased the correct tile called for in a contract. In a criminal case the surveillance video from a convenience store might be essential in establishing an alibi. In a personal injury case the records of a body shop might be crucial to helping a jury understand the severity of a rear end collision. These are all examples of how a business might not actually be a party to a suit but their records could take center stage.

If you do get a subpoena, don’t panic. The things requested for production are usually written right on the face of the document. Take a look and if you have an attorney you work with, give them a call. One of the most helpful things lawyers do for their clients is providing translations from legalese into English. All joking aside, consulting with an attorney is a good idea because your choices are truly limited to complying with the subpoena or appearing in court to quash it. Sometimes, if it’s unclear what the issuing law firm is looking for, a simple phone call between lawyers can cure the confusion and give you a chance to produce the needed documents without costly litigation over the issue.

So far, we’ve covered why the subpoenas go out and what you do if you get one. The most important issues remaining are: a) how do you comply, and b) what you can do to make complying easier. In the case of the tile retailer, what might happen is the home owner’s attorney could send the summons looking for records of transactions between the contractor and your tile business. If the contractor is a regular customer, there could be years of transactions and stacks of invoices. So you contact your attorney who calls up and finds out they really only want this particular transaction. So you go to your file for the contractor, pull up this particular invoice, make a copy and send it over to the requesting law firm on or before the date stated on the subpoena. Done.

Compliance is an easy thing if you have a solid filing system. I don’t work for an office supply company so this isn’t an advertisement for a particular computer program or brand of filing cabinet. However you organize best is fine by me. Think of it like the registration for your car. There’s no law saying you must keep the registration in your glove box or above your driver’s side visor. But if you do get pulled over while driving, you have to produce it, so keep it handy.

Compliance is also easier if you keep clear records. The problem comes when a third party viewing the document can’t read your handwriting, or the pencil scribble has gotten lighter because of time and friction. The problem gets worse when you can’t read your own writing because you were going too fast when you wrote it. If you still make carbon copies of invoices, keep the top slip. If you use computer invoicing, make sure that every document contains the date of transaction, the party to the transaction and enough space to type in a clear and thorough description.

The last question I sometimes hear is: “Do I have to appear in court because of this?” The answer is a definite maybe. Whether a keeper of records for a business has to appear in court to explain a record depends on several factors including the nature of the lawsuit, the clarity of the record and the tactical decisions of the attorneys involved in the case. One way to get that question answered is to contact your own attorney who can help you through the process.     

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] or through the firm's website at www.gskandglaw.com 

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