A surprising number of our clients have received subpoenas in civil suits or from Federal agencies lately, and there tends to be a bit of confusion about what exactly the implied responsibilities are regarding subpoenas. As such, it seemed only appropriate to author a blog on the topic this week.
To start, let’s review what a subpoena is. Officially, a subpoena is a writ issued by a government agency to compel the production of evidence. Most often subpoenas will be issued by courts, although they can technically be issued by any court official, including lawyers. If a subpoena is being issued by a private party, such as a lawyer, it must be in relation to an active case. Otherwise, the subpoena will not be considered valid. This is not true for government agencies though; agencies have the ability to issue subpoenas for investigative purposes at any time. It is important to understand this distinction because you would not want to make the mistake of producing information in relation to a subpoena that is not actually valid.
It can be confusing when a client receives a subpoena from an agent of state government, or a state court, for information that is federally protected. Customs brokers are beholden by law and regulation to keep their clients’ information confidential. What if a state judge demands production of federal (Customs brokerage, for example) records? This apparent conflict leaves people wondering exactly which agency they have a responsibility to: Federal licensing authorities and their regulations, or state courts and their rules? The answer is that you are subject to your state court judges. You sit within the jurisdiction of your state, therefore they have the power to make you produce even most federally protected documents. If state court judges are subpoenaing material for a strictly federal matter, they may not be able to do anything with the information obtained, but they do still have the power to make you produce it. This may seem counterintuitive, but it is important to understand how the system works. This is especially important for federally licensed Customs brokers and freight forwarders to understand, as they will likely encounter this situation at some point in their careers.
One last important point to note is that when requesting you produce documents, most subpoenas will say you must appear “with” the required materials. However, it is almost never the case that you actually need to physically appear. It is important to understand that subpoenas are not the same as depositions. With depositions, you are required to appear in person to give your recorded testimony; whereas with subpoenas, faxing or mailing the required information will almost always suffice.
If interested in relevant posts such as this, be sure to subscribe to our blog! If you have any additional questions about The Mooney Law Firm or the services we provide, contact us today.
Please note: Contact your own legal counsel immediately should any of the above situations arise. We are providing general information which may not be applicable to the actual situation you find yourself in.
