Rule 45 – Or Why You Shouldn’t Rule 45 – Or Why You Shouldn’t Panic When A Subpoena Comes Panic When A Subpoena Comes

InIn

S. Mujeeb Shah-Khan, Esq.S. Mujeeb Shah-Khan, Esq.Senior Assistant City AttorneySenior Assistant City Attorney

City of Charlotte – City Attorney’s OfficeCity of Charlotte – City Attorney’s OfficeNorth Carolina Association of Municipal North Carolina Association of Municipal

AttorneysAttorneys2008 Summer Conference2008 Summer Conference

August 2, 2008August 2, 2008

Oh no! Someone Oh no! Someone served us with a served us with a

subpoena!subpoena! One of your municipalities’ departments received a One of your municipalities’ departments received a subpoena demanding information on an employee.subpoena demanding information on an employee.

Or the subpoena demanded the appearance of an Or the subpoena demanded the appearance of an employee, manager, administrator or elected official employee, manager, administrator or elected official at a hearing, deposition or trial.at a hearing, deposition or trial.

Whoever received the subpoena is panicking. After Whoever received the subpoena is panicking. After all, they’ve never been part of a court case before.all, they’ve never been part of a court case before.

They walk into your office and are now in the third They walk into your office and are now in the third hour of freaking out.hour of freaking out.

Should you join them and start panicking? After all, Should you join them and start panicking? After all, it’s easy to do.it’s easy to do.

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Rule 45Rule 45 Rule 45 of the North Carolina Rules of Civil Procedure Rule 45 of the North Carolina Rules of Civil Procedure

is one of the means for obtaining the attendance of is one of the means for obtaining the attendance of witnesses and documents (can be used with a witnesses and documents (can be used with a municipality – when a public records request isn’t municipality – when a public records request isn’t used).used).

Rule 45 was substantially revised in 2003 in order to Rule 45 was substantially revised in 2003 in order to make it clearer and more like the Federal Rules of make it clearer and more like the Federal Rules of Civil Procedure’s version of Rule 45.Civil Procedure’s version of Rule 45.

The rule was further revised in 2007 to give all The rule was further revised in 2007 to give all parties notice of material produced pursuant to a parties notice of material produced pursuant to a subpoena and an opportunity to review the material.subpoena and an opportunity to review the material.

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The subpoena is here, The subpoena is here, what should you do?what should you do?

You don’t need to bring in an outside litigation You don’t need to bring in an outside litigation attorney – you can handle this yourself (assuming attorney – you can handle this yourself (assuming you have time or you and/or your office isn’t the you have time or you and/or your office isn’t the subject of the subpoena).subject of the subpoena).

Read Rule 45 and determine if you should try to Read Rule 45 and determine if you should try to object, modify, or quash the subpoena.object, modify, or quash the subpoena.

If there’s nothing objectionable, and it’s not imposing If there’s nothing objectionable, and it’s not imposing any sort of burden, then why not comply?any sort of burden, then why not comply?

If you’re producing documents, then Rule 45(d) If you’re producing documents, then Rule 45(d) requires you to produce the documents “as they are requires you to produce the documents “as they are kept in the usual course of business or shall organize kept in the usual course of business or shall organize and label the documents to correspond with the and label the documents to correspond with the categories in the request.”categories in the request.”

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What Should You Do? What Should You Do? (cont’d)(cont’d)

Call the attorney who issued the Call the attorney who issued the subpoena (especially if they requested subpoena (especially if they requested employment records) so you can let employment records) so you can let them know what you’re allowed to them know what you’re allowed to produce and what you can’t – or to produce and what you can’t – or to arrange for compliance alternatives.arrange for compliance alternatives.

You can resolve a lot with a phone call.You can resolve a lot with a phone call.

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Written ObjectionsWritten Objections

Unlike past practice, Rule 45 allows you Unlike past practice, Rule 45 allows you to use written objections to subpoenas to use written objections to subpoenas (instead of only being able to move to (instead of only being able to move to quash or modify the subpoena). Filing quash or modify the subpoena). Filing not required. not required.

However, you have to serve the However, you have to serve the objection within 10 days of service of objection within 10 days of service of the subpoena (or as soon as possible if the subpoena (or as soon as possible if it was served less than 10 days before it was served less than 10 days before compliance time). compliance time).

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Written Objections Written Objections (continued)(continued)

Justifications for objecting to the subpoena include:Justifications for objecting to the subpoena include:– It fails to allow reasonable time to complyIt fails to allow reasonable time to comply– It requires disclosing privileged or protected It requires disclosing privileged or protected

matter and no exception or waiver appliesmatter and no exception or waiver applies– It subjects a person to an undue burdenIt subjects a person to an undue burden– It is otherwise unreasonable or oppressiveIt is otherwise unreasonable or oppressive– It is procedurally defectiveIt is procedurally defective

The magic of the objection is that once served – the The magic of the objection is that once served – the person subject to the subpoena person subject to the subpoena is not required to is not required to complycomply, unless the subpoenaing party is able to , unless the subpoenaing party is able to obtain a court order compelling attendance (but obtain a court order compelling attendance (but you’re supposed to get notice of that hearing)you’re supposed to get notice of that hearing)

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Motions To Quash or Motions To Quash or ModifyModify

Assuming you couldn’t work it out with the Assuming you couldn’t work it out with the subpoenaing attorney, and you couldn’t send an subpoenaing attorney, and you couldn’t send an objection (or needed to have a hearing for tactical objection (or needed to have a hearing for tactical reasons) you can always file a Motion to Quash or reasons) you can always file a Motion to Quash or ModifyModify

Unlike the old Rule 45, the current Rule 45 allows you Unlike the old Rule 45, the current Rule 45 allows you to use the same reasons for objecting as reasons for to use the same reasons for objecting as reasons for moving to quash or modify. And you have the same moving to quash or modify. And you have the same time limits to make that motion.time limits to make that motion.

A Motion to Quash or Modify should be filed in the court A Motion to Quash or Modify should be filed in the court of the county where the trial, deposition, hearing, or of the county where the trial, deposition, hearing, or production will take place. production will take place.

But remember, you can be sanctioned for unwarranted But remember, you can be sanctioned for unwarranted motions or objections.motions or objections.

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Personnel Records Personnel Records SubpoenasSubpoenas

The majority of subpoenas served on the The majority of subpoenas served on the City of Charlotte are for employment records City of Charlotte are for employment records (domestic cases (financial) or personal injury (domestic cases (financial) or personal injury cases (verification of time lost from cases (verification of time lost from employment or issues related to accidents))employment or issues related to accidents))

Of course, some of the employment records Of course, some of the employment records can be produced via a court order, not a can be produced via a court order, not a subpoenasubpoena

If the subpoena is signed by an attorney – If the subpoena is signed by an attorney – you shouldn’t treat it as a court order – but if you shouldn’t treat it as a court order – but if signed by a judge, well, then play nice.signed by a judge, well, then play nice.

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Protection of Personnel Protection of Personnel RecordsRecords

Many attorneys are not aware of the Many attorneys are not aware of the restrictions of N.C.G.S. restrictions of N.C.G.S. §160A-168, so you §160A-168, so you may need to educate them.may need to educate them.– Again, a phone call helps, and then Again, a phone call helps, and then

following it up with a confirming letter following it up with a confirming letter providing the 8 items that are public providing the 8 items that are public record.record.

– Make sure that you make it clear that Make sure that you make it clear that once the information is provided, that once the information is provided, that you get them to release your you get them to release your municipality from the subpoena.municipality from the subpoena.

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More Employment Related More Employment Related Issues (In Passing)Issues (In Passing)

In the event that someone requests information on an In the event that someone requests information on an applicant for employment, remember that the applicant for employment, remember that the information is also protected. And if they were never information is also protected. And if they were never hired, then all of their information is protected from hired, then all of their information is protected from disclosure (see David Lawrence’s disclosure (see David Lawrence’s Public Records Law for Public Records Law for North Carolina Local GovernmentsNorth Carolina Local Governments for a fuller for a fuller discussion).discussion).

You may have an obligation to provide employment-You may have an obligation to provide employment-related information requested in a subpoena to a related information requested in a subpoena to a governmental agency (see governmental agency (see §§160A-168(c)(5)). 160A-168(c)(5)). – Of course, that all depends on if it’s “necessary and essential to Of course, that all depends on if it’s “necessary and essential to

the pursuance of a proper function” of that agency. the pursuance of a proper function” of that agency. – And remember, just because you may give information to an And remember, just because you may give information to an

agency, it doesn’t mean you’ve suddenly created a public agency, it doesn’t mean you’ve suddenly created a public record. record.

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Ethics IssuesEthics Issues In January of 1997, the State Bar issued In January of 1997, the State Bar issued

RPC 236 which made it clear that an RPC 236 which made it clear that an attorney could not use a subpoena and attorney could not use a subpoena and make misrepresentations “as to the make misrepresentations “as to the pendency of an action, the date or location pendency of an action, the date or location of a hearing, or a lawyer's authority to of a hearing, or a lawyer's authority to obtain documentary evidence.” RPC 236 obtain documentary evidence.” RPC 236 also stated that you could not issue a also stated that you could not issue a subpoena separately from a trial, hearing subpoena separately from a trial, hearing or deposition. or deposition.

The 2003 amendments to Rule 45 permit The 2003 amendments to Rule 45 permit just that, and so it appeared that RPC 236 just that, and so it appeared that RPC 236 was in conflict with the post-2003 Rule 45. was in conflict with the post-2003 Rule 45.

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Ethics Issues Ethics Issues (continued)(continued)

So, the Bar realized that a fix was in So, the Bar realized that a fix was in order. Accordingly, 2008 Formal Ethics order. Accordingly, 2008 Formal Ethics Opinion 4 was approved by the State Bar Opinion 4 was approved by the State Bar Council on July 18, 2008, which explicitly Council on July 18, 2008, which explicitly overrules RPC 236 where it conflicts with overrules RPC 236 where it conflicts with FEO 4.FEO 4.

So long as the party issuing the subpoena So long as the party issuing the subpoena is following Rule 45 and is relying upon a is following Rule 45 and is relying upon a good faith interpretation of the rule, good faith interpretation of the rule, they’re probably not violating the Rules they’re probably not violating the Rules of Professional Conduct (so you may not of Professional Conduct (so you may not want to complain about them to the Bar).want to complain about them to the Bar).

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Rule 45 – Or Why You Shouldn’t Rule 45 – Or Why You Shouldn’t Panic When A Subpoena Comes Panic When A Subpoena Comes

InIn

S. Mujeeb Shah-Khan, Esq.S. Mujeeb Shah-Khan, Esq.Senior Assistant City AttorneySenior Assistant City Attorney

City of Charlotte – City Attorney’s OfficeCity of Charlotte – City Attorney’s OfficeNorth Carolina Association of Municipal North Carolina Association of Municipal

AttorneysAttorneys2008 Summer Conference2008 Summer Conference

August 2, 2008August 2, 2008

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