Four Tips for Avoiding a Subpoena Horror Story

Does the thought of improperly preparing subpoenas for litigation keep you up at night? Given the heavy workloads and tight deadlines attorneys and paralegals routinely face, it’s all too easy for errors to slip through in the process and upend your litigation.

Attorneys and paralegals can learn from two subpoena horror stories our Subpoena Services team recently helped avert.

A Miscalculation Crisis Averted

In our first avoided horror story, our client needed records from 15 banks. They had a last-minute rush order that they prepared themselves, and, because they were up against their discovery cutoff deadline, they wanted to hand-serve Notices to Consumers, or NTCs, so they could set the earliest possible deposition date.

When Array’s Client Services team received the order, they immediately noticed an error in the subpoenas. In its rush to prepare the subpoenas, the client firm hadn’t noticed that the statutory five-day NTC hold ended on a Sunday, and they’d set the deposition date one day too early.

Banks are extremely strict about date calculations, and they will reject any subpoena served to them before the statutory hold period expires, or if a subpoena is served to them less than 15 days before the deposition date.

Array’s team called the firm immediately to discuss the situation and received the client’s approval to change the deposition date on the subpoenas before sending the NTCs out for service to opposing counsel. Had the order gone out as it came in, all the subpoenas would have been rejected and the client would not have been able to reissue the subpoenas ahead of trial.

A Mileage Crisis Averted

In our second avoided horror story, a client engaged us to serve a federal appearance subpoena the client had prepared. It was supposed to be served to a witness in San Francisco, and the location of the deposition was our client’s Los Angeles office.

Under Rule 45 of the Federal Rules of Civil Procedure, a deposition can’t be scheduled further than 100 miles from the place where the witness lives or works.

Our Service of Process team recognized the mileage issue and reached out to the client immediately and they changed the location of the deposition. Our contact at the firm was a new legal secretary, who was not aware of the mileage limitation.

These two stories highlight the high stakes of mistakes. We recommend the following to help avert possible horror stories in your litigation.

1. Check – and Re-Check – Your Work
Errors can happen to anyone. Working in a rush, under pressure, can be a recipe for disaster. We recommend that those working on subpoenas take a moment to slow down and always double-check their work. If you’re a paralegal and not sure about how a process works, ask your supervising attorney or an experienced colleague for assistance.

2. Become Familiar with Subpoena Rules
Become well-acquainted with the finer points of Rule 45 of the Federal Rules of Civil Procedure, which governs subpoena requirements in federal courts. Knowing it and other state and local rules can help you avoid trouble in the long run.

3. Keep Industry-Specific Norms in Mind
In addition to familiarizing yourself with the applicable rules and law, the bank story highlights the importance of being on top of industry-specific norms and requirements in subpoena service.

If you’re a supervising attorney overseeing a paralegal or legal assistant who is preparing your subpoenas, we recommend ensuring they are well trained in both the basics of subpoena requirements and industry-specific nuances.

4. Work with Experienced Vendors
With so little room for error, there’s no substitute for experience. Consider outsourcing subpoena preparation and service to an outside vendor that is well-positioned to spot and correct subpoena errors before they derail your litigation.

Some questions to ask a potential vendor include:

• Who will be preparing subpoenas?
• What is their experience doing so?
• Are they well-versed in the law and the applicable rules?
• Are they properly licensed to perform this service in your jurisdiction?