Use of Subpoenas in Civil Actions and Proceedings

Publication year1998
Pages93
27 Colo.Law. 93
Colorado Lawyer
1998.

1998, June, Pg. 93. Use of Subpoenas in Civil Actions and Proceedings




93


Vol. 27, No. 6, Pg. 93

The Colorado Lawyer
June 1998
Vol. 27, No. 6 [Page 93]

Departments
CBA Ethics Committee Formal Opinions
Use of Subpoenas in Civil Actions and Proceedings

[Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court or its Grievance Committee and do not provide protection against disciplinary actions.]

86 USE OF SUBPOENAS IN CIVIL PROCEEDINGS
Adopted May 19, 1990.
Addendum issued 1995.
Revision Adopted January 17, 1998

Introduction

This Opinion addresses problems that have been brought to the attention of the Ethics Committee (the "Committee") related to the use of subpoenas duces tecum in civil actions and proceedings. The Committee has been made aware of instances when lawyers have used subpoenas duces tecum in civil actions to obtain privileged information without complying with the Rules of Civil Procedure. In other instances, subpoenas duces tecum have been used in civil actions to obtain an exclusive review of documents or other physical evidence, or a review before opposing counsel or an unrepresented defendant, because no notice has been given to the adversary party. In still other instances, the witness or custodian of records on whom a subpoena duces tecum has been served is knowingly misled into disclosing privileged or confidential information that the witness would not be required to reveal. Finally, the Committee has been made aware of instances when lawyers have received privileged or confidential documents or other tangible things pursuant to a subpoena duces tecum, because the witness subject to the subpoena inadvertently delivered those privileged or confidential materials

Syllabus In a civil action in Colorado state court or federal court, 1 a lawyer may not issue or cause to be issued a subpoena duces tecum for production of documents or other tangible things at a deposition without giving notice to every other party to the action, and the designation of the materials to be produced pursuant to the subpoena must be attached to or included in the notice, unless a court order provides otherwise. Similarly, in a civil action in federal court, a lawyer may not issue or cause to be issued a subpoena duces tecum for production of documents or other tangible things or inspection of premises before trial without giving notice to every other party to the action Also, in a civil action in Colorado state court, a lawyer may not issue or cause to be issued a subpoena duces tecum for production of documents or other tangible things except at a deposition, hearing, or trial, unless the parties agree otherwise or a court order provides otherwise. It is the Committee's opinion that knowingly violating these requirements is unethical.

Further, in the course of a civil proceeding, 2 if a lawyer communicates with a witness on whom a subpoena has been served, it is unethical for a lawyer knowingly to mislead the witness during any communication into disclosing privileged or confidential information or documents that the witness would not otherwise knowingly reveal or be compelled to reveal.

Finally, in the course of a civil proceeding, if a witness on whom a subpoena has been served inadvertently delivers to the lawyer issuing the subpoena documents that the lawyer knows to be, or that appear on their face to be, privileged or confidential, 3 then the lawyer receiving such documents has an ethical obligation to refrain from reviewing the material further after becoming aware of the privileged or confidential nature of the material. The attorney receiving such documents also has an ethical obligation to notify the adverse party if unrepresented or the adverse party's lawyer and the producing witness and to take reasonable steps to notify the person entitled to invoke the privilege with respect to the documents that he or she possesses such materials and either to follow the instructions of the person who is entitled to invoke the privilege with respect to the documents or to refrain from using the documents until a definitive resolution is obtained from the court.

Opinion

Procedural Requirements under the Federal and Colorado Rules of Civil Procedure

The function of a subpoena is to compel the attendance of witnesses and/or the production of documents and other tangible things, so the court may have access to all relevant information to decide the cases before it. See generally 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2451 (1995). There are two types of subpoenas. A subpoena ad testificandum compels the attendance of a witness to testify, and a subpoena duces tecum compels the production of documents...

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