The ability to subpoena records from a third party (e.g. cell phone records from Verizon) is a powerful tool that when properly utilized, can have a huge impact on your lawsuit. The following guide provides a brief overview on who can issue a subpoena and what steps need to be taken to ensure all procedural rules are followed. Keep in mind that the following responses are limited in application to civil claims in Minnesota State Courts.
How are subpoenas for records obtained?
Minnesota Rule of Civil Procedure 45 governs document requests to third-parties. A “subpoena duces tecum” is the term for a subpoena that requests documents, as opposed to testimony, and must be used to request documents from a third-party. In Minnesota, licensed lawyers can issue subpoenas directly (i.e., need not apply to the court administrator or court for issuance of a subpoena). Subpoenas may also be issued by the court administrator to a requesting party.
Courts are typically more sensitive to the burdens placed on third parties in responding to a subpoena. Therefore, to the extent an attorney is requesting documents from a third-party, it is sometimes preferable to keep the document request limited in number and/or scope. Rule 45 specifically requires attorneys to take reasonable steps to avoid imposing undue burden or expense on a person subject to a subpoena. Rule 45.03 specifies that this duty will be enforced by the court. The court may impose sanctions if the duty is breached; sanctions may include, but are not limited to, lost earnings and reasonable attorney’s fees.
Do you need to notify the other parties in the lawsuit that you subpoenaed records?
Yes. A subpoena commanding the production of documents must be served on all other parties of record and at least seven days before the required production. Failure to provide notice is improper and may subject the party or attorney issuing it, or on whose behalf it was issued, sanctions.
If so, how many days do they have to object to the subpoena?
An objection to a subpoena must be made by a motion to quash or modify the subpoena. The motion must be timely, or in other words brought prior to the date set forth in the subpoena for the production of documents.
Does anything need to be filed with the courts? If so, when?
In general nothing needs to be filed with the courts. However, an affidavit of service should be prepared by the process server or person serving the subpoena in the unlikely event that there is some dispute that later requires the filing of the subpoena with proof of service with the district court.
The Minnesota Judicial Branch maintains an extensive list of approved forms for various litigation needs. Included in this list is a sample subpoena form. A copy of this form is attached. The form is accessible at Minnesota’s State Court website forms as both a pdf and as an editable Word document.