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

1. Rule 45 – Or Why You Shouldn’t Panic When A Subpoena Comes In S. Mujeeb Shah-Khan, Esq. Senior Assistant City Attorney City of Charlotte – City Attorney’s Office North Carolina Association of Municipal Attorneys 2008 Summer Conference August 2, 2008

2. Oh no! Someone served us with a subpoena! • One of your municipalities’ departments received a subpoena demanding information on an employee. • Or the subpoena demanded the appearance of an employee, manager, administrator or elected official at a hearing, deposition or trial. • Whoever received the subpoena is panicking. After all, they’ve never been part of a court case before. • They walk into your office and are now in the third hour of freaking out. • Should you join them and start panicking? After all, it’s easy to do. 2

4. Rule 45 • Rule 45 of the North Carolina Rules of Civil Procedure is one of the means for obtaining the attendance of witnesses and documents (can be used with a municipality – when a public records request isn’t used). • Rule 45 was substantially revised in 2003 in order to make it clearer and more like the Federal Rules of Civil Procedure’s version of Rule 45. • The rule was further revised in 2007 to give all parties notice of material produced pursuant to a subpoena and an opportunity to review the material. 4

5. The subpoena is here, what should you do? • You don’t need to bring in an outside litigation attorney – you can handle this yourself (assuming you have time or you and/or your office isn’t the subject of the subpoena). • Read Rule 45 and determine if you should try to object, modify, or quash the subpoena. • If there’s nothing objectionable, and it’s not imposing any sort of burden, then why not comply? • If you’re producing documents, then Rule 45(d) requires you to produce the documents “as they are kept in the usual course of business or shall organize and label the documents to correspond with the categories in the request.” 5

6. What Should You Do? (cont’d) • Call the attorney who issued the subpoena (especially if they requested employment records) so you can let them know what you’re allowed to produce and what you can’t – or to arrange for compliance alternatives. • You can resolve a lot with a phone call. 6

7. Written Objections • Unlike past practice, Rule 45 allows you to use written objections to subpoenas (instead of only being able to move to quash or modify the subpoena). Filing not required. • However, you have to serve the objection within 10 days of service of the subpoena (or as soon as possible if it was served less than 10 days before compliance time). 7

8. Written Objections (continued) • Justifications for objecting to the subpoena include: • It fails to allow reasonable time to comply • It requires disclosing privileged or protected matter and no exception or waiver applies • It subjects a person to an undue burden • It is otherwise unreasonable or oppressive • It is procedurally defective • The magic of the objection is that once served – the person subject to the subpoena is not required to comply, unless the subpoenaing party is able to obtain a court order compelling attendance (but you’re supposed to get notice of that hearing) 8

9. Motions To Quash or Modify • Assuming you couldn’t work it out with the subpoenaing attorney, and you couldn’t send an objection (or needed to have a hearing for tactical reasons) you can always file a Motion to Quash or Modify • Unlike the old Rule 45, the current Rule 45 allows you to use the same reasons for objecting as reasons for moving to quash or modify. And you have the same time limits to make that motion. • A Motion to Quash or Modify should be filed in the court of the county where the trial, deposition, hearing, or production will take place. • But remember, you can be sanctioned for unwarranted motions or objections. 9

10. Personnel Records Subpoenas • The majority of subpoenas served on the City of Charlotte are for employment records (domestic cases (financial) or personal injury cases (verification of time lost from employment or issues related to accidents)) • Of course, some of the employment records can be produced via a court order, not a subpoena • If the subpoena is signed by an attorney – you shouldn’t treat it as a court order – but if signed by a judge, well, then play nice. 10

11. Protection of Personnel Records • Many attorneys are not aware of the restrictions of N.C.G.S. §160A-168, so you may need to educate them. • Again, a phone call helps, and then following it up with a confirming letter providing the 8 items that are public record. • Make sure that you make it clear that once the information is provided, that you get them to release your municipality from the subpoena. 11

12. More Employment Related Issues (In Passing) • In the event that someone requests information on an applicant for employment, remember that the information is also protected. And if they were never hired, then all of their information is protected from disclosure (see David Lawrence’s Public Records Law for North Carolina Local Governments for a fuller discussion). • You may have an obligation to provide employment-related information requested in a subpoena to a governmental agency (see §160A-168(c)(5)). • Of course, that all depends on if it’s “necessary and essential to the pursuance of a proper function” of that agency. • And remember, just because you may give information to an agency, it doesn’t mean you’ve suddenly created a public record. 12

13. Ethics Issues • In January of 1997, the State Bar issued RPC 236 which made it clear that an attorney could not use a subpoena and make misrepresentations “as to the pendency of an action, the date or location of a hearing, or a lawyer's authority to obtain documentary evidence.” RPC 236 also stated that you could not issue a subpoena separately from a trial, hearing or deposition. • The 2003 amendments to Rule 45 permit just that, and so it appeared that RPC 236 was in conflict with the post-2003 Rule 45. 13

14. Ethics Issues (continued) • So, the Bar realized that a fix was in order. Accordingly, 2008 Formal Ethics Opinion 4 was approved by the State Bar Council on July 18, 2008, which explicitly overrules RPC 236 where it conflicts with FEO 4. • So long as the party issuing the subpoena is following Rule 45 and is relying upon a good faith interpretation of the rule, they’re probably not violating the Rules of Professional Conduct (so you may not want to complain about them to the Bar). 14

15. Rule 45 – Or Why You Shouldn’t Panic When A Subpoena Comes In S. Mujeeb Shah-Khan, Esq. Senior Assistant City Attorney City of Charlotte – City Attorney’s Office North Carolina Association of Municipal Attorneys 2008 Summer Conference August 2, 2008 15