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Enforceability of a mailed subpoena
rays
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I received a subpoena from the US District Court by mail today, asking me to provide copies of receipts for two coin purchases last year from a dealer. Apparently, the dealer is being sued over breach of a consignment contract. The lawsuit is filed in another state.
Must/should I comply?
Must/should I comply?
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<< <i>I received a subpoena from the US District Court by mail today, asking me to provide copies of receipts for two coin purchases last year from a dealer. Apparently, the dealer is being sued over breach of a consignment contract. The lawsuit is filed in another state.
Must/should I comply? >>
Are they asking you or ordering you? I always thought a subpoena was an order and if you do not comply you face punishment...
So, if it's an order, best you comply
bob
<< <i>It's an order of the court, signed by a Judge. But its in another state. >>
I believe you are obligated to comply, even if the state you made the purchase is not your current residence...
but hey, I'm not a lawyer.
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<< <i>Yeah, I'm pretty sure failure to comply with a subpeona means you can be held in contempt of court indefinitely, regardless of your state of residence.
If you don't have the receipts, just say you don't lol. >>
I have them.
<< <i>Registered letter? Did you sign for it? >>
No, it came first class mail.
<< <i>
<< <i>Registered letter? Did you sign for it? >>
No, it came first class mail. >>
Why not comply all you have to do is copy and mail them right?
BTW I am really surprised it was not sent certified mail that is what that type of service is for.
<< <i>
<< <i>Registered letter? Did you sign for it? >>
No, it came first class mail. >>
In some jurisdictions it is practice to send two letters, one first class and the other certified.
Check Monday's mail.
"A car is a tool that takes you from one place to another. Everything beyond that is a payment for other people's perception of you."
<< <i>Now that you have publicly acknowledged receipt of the subpoena, yes.
Since the coins have been tracked to you, you might consider selling them in the event they get awarded to a prior owner. >>
Does the Subpoena ask you to bring the copies of the receipts to a Deposition? If so, you had better comply with it. You could face
sanctions if you don't.
Everybody's got plans--until they get hit
--Mike Tyson
<< <i>
<< <i>Now that you have publicly acknowledged receipt of the subpoena, yes.
Since the coins have been tracked to you, you might consider selling them in the event they get awarded to a prior owner. >>
That's an interesting concept--
What would happen if:
1. You buy a coin on consignment from Dealer A, who then
2. enters into a dispute over the terms of the consignment from the consignor (dealer
I don't think the coin bought would be considered "stolen".
are you afraid of seizure or forfeiture?
Even more likely, the consignor was not paid for the coin.
Edited to add that if that's the case, and if the dealer is in fact clearly a dealer, your title to the coins should be secure. (But I'm not a lawyer.)
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KK
It was a fishing expedition by the defense. The plaintiff never even worked for us. He just did some volunteer stuff.
I would not assume that this case is about OP's sales. It may simply be one side's attempt to establish a pattern of behavior.
And FWIW I'd respond to the subpoena and not play games.
Lance.
<< <i>why would you not want to comply?
are you afraid of seizure or forfeiture? >>
Not so much seizure of the coins but I have a nearly 20 year collecting relationship with the dealer being sued and I do not want to participate in anything that would jeopardize that relationship.
Now, why would you not want to answer? Yeah, probably true, you didn't receive the letter if you did not sign. OK. Why? You know you received it via mail and if that's the way the request is being made what's the worry?
Honestly, if you WANT ADVICE then just answer it. Best of Luck. I wouldn't worry.
Run the phone book for a lawyer who will talk for a few minutes, usually more than a few will accomodate your concerns over the phone.
<< <i>Not so much seizure of the coins but I have a nearly 20 year collecting relationship with the dealer being sued and I do not want to participate in anything that would jeopardize that relationship. >>
You should do the right thing. This is black-and-white: simply make copies of the invoices in question and mail them as requested. Use signature confirmation or something showing proof of delivery.
Not respondind is not going to help the dealer. In fact--assuming that he did nothing wrong--your lack of response could hurt your dealer friend.
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Without that, it might have gotten mixed in with and discarded with a neighbor's
Pennysaver.
Sounds like the Plaintiff, through their attorney is seeking records to prove transactions, or habit and routine, or something that specific to this transaction, i.e. that the dealer sold coins from someone, but did not pay the consignor.
They would not normally go this far unless they believe it is relevant. Most likely they already have a copy of the receipt that the dealer provided through a request of production, that is probably how they got your address.
Sounds like the attorney for the Plaintiff requested the judge to sign the request for production through a subpoena, then had it judge in your state sign it for enforcement in your state.
If it was an out of state subpoena, you could probably ignore if from a state court, but as it was pushed through your state, you need to comply, or the judge in your state could hold you in contempt.
If you do not have the receipts, an affidavit addressed to your district court would suffice. Affidavits are relative easy to fill out. If you do not have, if they are serious, they will probably take the next step and do a deposition of you or interrogatories (written questions). Obviously you already stated herein that you had the receipts, so that is irrelevant.
If you do have them, an affidavit to the court stating these are the receipts you received are the same.
Most attorneys in civil litigations might try to contact you, and most will send it certified and regular mail.
The only problem that I can think of if the person who sold it sold illegal or stolen property, then I believe the property can be forfeited. For example if it was on consignment and they sold and did not pay. The end result may be that their local state court order that the property that was illegally sold, be returned. This might force you to sue the dealer to get back your money you paid him.
In the alternative, you can seek to block the request for production, subpoena in your district court, and in most cases, do through written motions, and do through telephone during the motion held before the Court. This would force the Plaintiff's attorney to have to
argue the motion in your home court.
Of course, the easy way is just to submit the receipts with an affidavit.
Do you have a copy of the subpoena you can copy herein, removing the names and such?
If the coins are valuable, and if their might be a possibility that you have to forfeit them, even though you paid for them, you might consider an attorney to protect your property, someone who knows jurisdiction laws.
Did your dealer call you or contact you regarding this? Be careful in that if you do communicate, they might depose you in the future, and any conversation can be requested.
If your dealer has an attorney, you can usually speak to them to find out the facts, and such conversations should normally be protected under work product for that attorney.
If it were me, I would ask the obvious question, relevance, if they have the receipts from the dealer, they would not need from you. Unless their is an alternative motive, such as going after the coins, that they claim were wrongfully sold.
Kevin
<< <i>The key term is "consignment contract." By definition title to a product (jewelry, auto, pc, cell phone, coin, stamp, etc) does not pass to the buyer, until the consignor is paid in full.
KK >>
Unless you prove through expert testimony, they habit and routine in the context, i.e. that in our coin hobby, that the majority of dealers sell coins on consignment, then pay the consignor. This is my belief of our normal habits.
Kevin
For the life of me I don't know why, if you have the requested documents, you wouldn't just mail them to the attorney as requested in the subpoena or follow whatever instructions are given as to how to comply with production of the documents. If your curious about the full nature of the underlying suit to make sure you might not be drawn into an ownership dispute over the coins, you can contact the clerk of the court where the action is pending and get instructions for how to get a copy of the filed complaint, which is a matter of public records.
If your just interested in an academic understanding of the rules relating to issuance and enforcement of Subpoena's in general in federal court, here is Rule 45 reproduced in its entirety. Cornell University Law School has one of the most easily navigable full sets of Federal Rules of Civil Procedure on their site. Happy reading!
Rule 45. Subpoena
(a) In General.
(1) Form and Contents.
(A) Requirements—In General. Every subpoena must:
(i) state the court from which it issued;
(ii) state the title of the action, the court in which it is pending, and its civil-action number;
(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and
(iv) set out the text of Rule 45(c) and (d).
(B) Command to Attend a Deposition—Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.
(C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(D) Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
(2) Issued from Which Court. A subpoena must issue as follows:
(A) for attendance at a hearing or trial, from the court for the district where the hearing or trial is to be held;
(B) for attendance at a deposition, from the court for the district where the deposition is to be taken; and
(C) for production or inspection, if separate from a subpoena commanding a person's attendance, from the court for the district where the production or inspection is to be made.
(3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena as an officer of:
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending.
(b) Service.
(1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.
(2) Service in the United States. Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place:
(A) within the district of the issuing court;
(B) outside that district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection;
(C) within the state of the issuing court if a state statute or court rule allows service at that place of a subpoena issued by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, production, or inspection; or
(D) that the court authorizes on motion and for good cause, if a federal statute so provides.
(3) Service in a Foreign Country. 28 U.S.C. §1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.
(4) Proof of Service. Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:
(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).
Greg Hansen, Melbourne, FL Click here for any current EBAY auctions Multiple "Circle of Trust" transactions over 14 years on forum
<< <i>
<< <i>
<< <i>Now that you have publicly acknowledged receipt of the subpoena, yes.
Since the coins have been tracked to you, you might consider selling them in the event they get awarded to a prior owner. >>
That's an interesting concept--
What would happen if:
1. You buy a coin on consignment from Dealer A, who then
2. enters into a dispute over the terms of the consignment from the consignor (dealer
I don't think the coin bought would be considered "stolen". >>
Bad idea, especially if the Plaintiff/Plaintiff's lawyer ever read this thread, they could probably easily argue you knew it was not your and sold it illegally.....
After reading this...I hope that the relationship you are wanting to protect is not one where you would agree to pay a certain price 'x' for a coin, but the dealer would only issue you an invoice for price 'x-y' for the coin...so he could show a consignor that he sold the coin for less than what he actually did. If someone knowingly assisted a dealer in cheating his consignors by agreeing to be invoiced for an amount less than what they paid for the coin, they would rightfully have something to worry about.
If you did nothing wrong and you weren't helping him do anything unlawful, I would produce the records and be done with it. Your reluctance to do so will simply draw more attention to you from the lawyers and they will naturally start asking themselves what type of relationship you are trying to protect.
Frankly, if the dealer did cheat someone without your knowledge and you were only unwittingly involved as a good faith purchaser for fair value, I don't know why you would want to protect that dealer relationship. Sounds like you should be thankful that you learned the true nature of the dealers business ethics without getting cheated yourself!
Greg Hansen, Melbourne, FL Click here for any current EBAY auctions Multiple "Circle of Trust" transactions over 14 years on forum
<< <i>Not so much seizure of the coins but I have a nearly 20 year collecting relationship with the dealer being sued and I do not want to participate in anything that would jeopardize that relationship.
After reading this...I hope that the relationship you are wanting to protect is not one where you would agree to pay a certain price 'x' for a coin, but the dealer would only issue you an invoice for price 'x-y' for the coin...so he could show a consignor that he sold the coin for less than what he actually did. If someone knowingly assisted a dealer in cheating his consignors by agreeing to be invoiced for an amount less than what they paid for the coin, they would rightfully have something to worry about.
If you did nothing wrong and you weren't helping him do anything unlawful, I would produce the records and be done with it. Your reluctance to do so will simply draw more attention to you from the lawyers and they will naturally start asking themselves what type of relationship you are trying to protect.
Frankly, if the dealer did cheat someone without your knowledge and you were only unwittingly involved as a good faith purchaser for fair value, I don't know why you would want to protect that dealer relationship. Sounds like you should be thankful that you learned the true nature of the dealers business ethics without getting cheated yourself! >>
Obviously you know the law.
Is it possible that the Plaintiff could seek return of their property, and said property could be forfeited without reimbursement? That this individual would be forced to seek their money back from their dealer?
Is it possible that the Plaintiff may attempt to pull this individual into their state to make the forfeiture easier to enforce? Would not personal jurisdiction be easy to prove as this individual had a business relationship with someone in their state for 20 years?
In the alternative, if a judgement was made, is it not possible that it includes an order to return the property, which can be enforceable in his state?
I agree that this individual can seek to see the original complaint, but the Plaintiff can also amend their complaint to include this individual at a future date, correct?
Why would they need the receipts if the dealer gave them the receipts, just sounds fishy
Kevin
<< <i>Without seeing the subpoena, but based on your description of the litigation and issuing court; it is almost a certainty that the legality and enforceability of your subpoena is governed by Rule 45 Federal Rules of Civil Procedure. I does not sound as if service has been properly made. Typically service is made by a process server (the kind that knocks on your door looking for your) and proof of proper service of the subpoena must generally be filed with the court before the target can be subject to contempt.
For the life of me I don't know why, if you have the requested documents, you wouldn't just mail them to the attorney as requested in the subpoena or follow whatever instructions are given as to how to comply with production of the documents. If your curious about the full nature of the underlying suit to make sure you might not be drawn into an ownership dispute over the coins, you can contact the clerk of the court where the action is pending and get instructions for how to get a copy of the filed complaint, which is a matter of public records.
>>
What he said.
Now that you know they want to present a subpoena you don't even have to sign for regisatered mail or answer your door when they knock.
You only have to comply with court oreders properly presented and or enacted.
I might talk to the dealer first but I'd be heavily inclined to go ahead and send the requested information. It costs a lot of work to run a country so why make it harder?
Ownership doesn't pass on stolen material anyway so you will be stuck if you're the last in line no matter what. Passing it on is risky or you might find a need to appear in court in front a grumpy judge unimpressed by your behavior.
It sounds like this might be nothing anyway.
Drink mixes, maybe.
Yes, yes & yes. Pretty much any scenario is possible. That's what keeps folks like me in business.
I love these forums, but I would not seek legal or medical advice here. Drink mixes maybe.
Amen brother...and pheasant or venison recipes!!! I have several fine ones!
Greg Hansen, Melbourne, FL Click here for any current EBAY auctions Multiple "Circle of Trust" transactions over 14 years on forum
Does the return address check out as a real court?
Please let us know what happens.
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<< <i>It's an order of the court, signed by a Judge. The lawsuit is in another state, and I just realized the subpoena is issued from the US District Court of Southern California (my state). >>
Unless you don't mind potentially losing the higher of the current value of the coins you purchased or the price you paid, under no circumstance should you admit even buying the coins, let alone complying to the subpoena without getting an attorney! It sounds like they are in the discovery phase, and the last thing you want is to reply incorrectly and somehow get drug in to the lawsuit as a third party defendant. If the seller did not have title to the coins, the coins still belong to the original owner unless the seller was working in some sort of financial advisory role where he regularly made buy and sell decisions for the owner of the coins and had the right to have the coins in his possession. Be very careful with this one.
<< <i>Without seeing the subpoena, but based on your description of the litigation and issuing court; it is almost a certainty that the legality and enforceability of your subpoena is governed by Rule 45 Federal Rules of Civil Procedure. I does not sound as if service has been properly made. Typically service is made by a process server (the kind that knocks on your door looking for your) and proof of proper service of the subpoena must generally be filed with the court before the target can be subject to contempt.
For the life of me I don't know why, if you have the requested documents, you wouldn't just mail them to the attorney as requested in the subpoena or follow whatever instructions are given as to how to comply with production of the documents. >>
To avoid becoming a third-party defendant.
<< <i>
Amen brother...and pheasant or venison recipes!!! I have several fine ones! >>
...And even if you can can successfully avoid spending all your money on lawyers you might not be able to afford pheasant.
To each his own.
<< <i>I love these forums, but I would not seek legal or medical advice here.
Drink mixes, maybe. >>
Didn't wanna get me no trade
Never want to be like papa
Working for the boss every night and day
--"Happy", by the Rolling Stones (1972)
Given what might considered the unreasonableness of the serving, compared to a simple phone call to explain
I do not like being forced/pushed into doing something, especially without knowledge of the consequences,
I might move to squash the subpoena based upon jurisdiction, lack or proper service, relevance,
This might force the Plaintiff's attorney to show his hand and objective in your district court.
Discovery needs to be relevant, and I would argue that the dealer most likely already produced the receipts.
Kevin