“Subpoena Compliance – Missouri’s New Court Rule” by Christiaan D. Horton

In the past, attorneys would often seek the issuance of Subpoenas for service on third parties, usually custodians of records, on short notice to secure the production of documents related to their case. Is this because many attorneys procrastinate? Maybe so. However, our Missouri Supreme Court has recently addressed this practice by formulating a new subpoena rule that is designed to protect third parties from this potential abuse and to give other parties to the civil litigation a “head’s up” that such documents are being requested with enough time to formulate objections to the production.
Subpoena Issuance 101: Missouri Supreme Court Rule 57.09 sets forth the process and procedure for serving subpoenas to secure deposition testimony and document production from third parties. It should be noted that subpoenas may only be issued by an officer or person before whom depositions may be taken, like a Court Reporter, or by the Clerk of the Court in which the civil action is pending. The subpoena must state the name, address and telephone number of all attorneys of record and self-represented parties, and must command each person to whom it is directed to attend and give testimony at a time and place specifically set forth in the subpoena.
In conjunction with the deposition notice, the subpoena may also command the production of books, papers, documents or other tangible things. Of course, a Court may quash or modify the subpoena if it is unreasonable or oppressive or may require the party who issued and served the subpoena to advance the reasonable cost of producing the documents and things requested (ie., copy charges and search fees for archived records).
Time Requirements for Service of Subpoenas. Rule 57.09(c) now sets forth certain protections for subpoenas of this nature that are served on third parties or parties who are not involved in the civil litigation pending before the Court. Under Missouri’s new rule, a subpoena to a non party for the production of documents and things shall be served no fewer than ten (10) days before the time specified for compliance. This gives all attorneys and parties an opportunity to assess whether the subpoena was properly issued and allows time for court intervention through motions to quash or modify the subpoena if it is unreasonable or oppressive. The party serving a subpoena on a non-party must also provide a copy of the subpoena to every party in the case with a proof of service, and a party objecting to the subpoena is allowed to seek a protective order under Rule 56.01(c). Missouri’s new rule also puts the responsibility on the attorney who initiated the issuance and service of the subpoena to take reasonable steps to avoid imposing undue burden or expense on a non-party subject to the subpoena.
Written Agreement Required to Avoid Deposition. It was also common practice for attorneys to acquire documents from third parties by instructing that a deposition was not necessary if the documents could be produced in advance of the deposition date and supplied to the attorney requesting them. This allowed attorneys to essentially gather documents without the knowledge of other parties or attorneys in the case. This practice is no longer permitted with the new rule. Now Rule 57.09(c) requires an agreement of all parties in the civil action to excuse a non-party from appearance at the deposition and production of the subpoenaed items in advance. In other words, all attorneys of record on the case must approve of this practice which prevents secret gathering of documents in advance of the deposition date contained in the subpoena. If all parties agree, the third party may produce documents to the requesting attorney or party who is then responsible for providing all other parties the opportunity to inspect or copy the subpoenaed items. Furthermore, the requesting attorney or party must advise the non-party in writing of this agreement reached, and provide a copy to all attorneys of record and self-represented parties of this communication. Absent such an agreement, the subpoenaed items shall only be produced at the deposition. Again, this insures that all parties and attorneys have the same opportunity to review and inspect the documents and things produced.
Third parties beware: you must attend the deposition and produce the documents requested unless you have a signed agreement from all attorneys and unrepresented parties that such attendance is not required!
Business Record Affidavits. Upon request by any party, the non-party shall also produce with the subpoenaed items a Business Record Affidavit of the Custodian of Records of the Company or person in charge of the safekeeping of the records. The purpose of this affidavit is to provide the foundation necessary to substantiate the authenticity of the documents so they may be introduced at a hearing or trial with proper evidentiary foundation. The Affidavit, if supplied, will in most cases prevent a subsequent court appearance related to the authenticity of the documents.
Rights to Object. A non-party has rights to object to inspection and copying of designated items under the new rule as well. The objection must state the specific reasons why the subpoena should be quashed or modified, and with the ten (10) day rule now in effect, there is time for all parties to be notified and for timely court intervention if an agreement cannot be reached on the subject. If a timely and specific objection is made, the party who issued and served the subpoena is not entitled to inspect or copy the subpoenaed items except pursuant to an order of the court.
Pitfalls of Non-Compliance. Of course, there are “teeth” in the Rule that carry forward from its prior version for those contemplating an approach of non-compliance. Any person who, without adequate excuse, fails to obey a subpoena served upon such person may be held on contempt of court in which the civil action is pending, and could be exposed for liability for attorney’s fees and court costs, and in extreme cases, potential confinement, until the contempt is purged as ordered by the court.
Take Aways. Often, third party compliance with subpoenas is not controversial, but on occasion, significant legal concerns could arise including the obligations that the third party may have to protect privileged and confidential information, including company trade secrets, employment records, and protected health information. A strong recommendation is made to consult with legal counsel should any significant concern arise on the production of sensitive documents. Under Missouri’s new rule, the “I didn’t have time to file an objection or quash the subpoena” excuse will no longer be a viable one. Take comfort knowing that The Litigation Group at Carnahan, Evans, Cantwell & Brown, P.C. stands ready to assist on any subpoena and document production issues you or your company may encounter.