Digital Media and Data Privacy Law Blog

It’s the pivotal moment in countless episodes of Law & Order and CSI.  You know the scene by heart, no doubt.

Detectives approach the intrepid reporter asking for some video or information about where the reporter got a piece of information.  The reluctant reporter puts up initial resistance, saying something like, “That is confidential.”  Detectives quickly respond that they will get a subpoena if they "have to," and, if they do, “we’ll come back in a bad mood.”  Detectives leave with information in hand.

Such confrontations are key to wrapping up a case in forty-eight minutes or less, but every reporter should know that while these scenes may be “ripped from the headlines,” any resemblance to the actual law is purely coincidental.  Of course while the law might be fictional, the factual scenario is all too common, at both the federal level and the state level.

In other posts to this blog, we provide reporters and editors with a broad overview of the law of subpoenas, including, of course, some concrete steps that you should take when your local Detective Briscoe shows up asking for some videotape or photographs, an interview transcript, or the identity of a source.

Today’s topic . . . what exactly is a subpoena?

The fancy legal term is “Subpoena Duces Tecum,” which is just the Latin way of saying that a court is requiring you to appear at a designated time and place with some specified documents.  A subpoena may require you or someone in your newsroom to appear in court, before a grand jury, or in an attorney's office to testify under oath.  In some cases, it will simply request some particular document or material (like handwritten notes or videotape footage).

If the subpoena pertains to a matter in state court, the state rules of procedure dictate what must be in the subpoena and how you may respond to it.  In North Carolina, for example, Rule 45 of the North Carolina Rules of Civil Procedure will govern, whether the subpoena is issued in connection with a civil or criminal proceeding.  If the subpoena relates to a matter pending in federal court, Rule 45 of the Federal Rules of Civil Procedure will apply.  We discuss the differences between state and federal subpoenas in more detail in another post.  It is important to recognize that with very limited exceptions (such as grand jury subpoenas), a subpoena cannot be issued unless there is a pending civil or criminal proceeding.  In other words, a law enforcement officer, district attorney, or private attorney generally cannot issue a subpoena as part of an investigation that has not ripened into an actual lawsuit or arrest.

Most often, someone—either a sheriff or a professional process server—will appear at your newsroom with subpoena in hand and give it to you personally (i.e. “serve” you).  It is possible in North Carolina to serve a subpoena by registered or certified mail, but personal service by a sheriff or process server is still common.  It is unlikely that a detective investigating a criminal matter would show up at your office with a subpoena in hand.

Though the actual appearance of the subpoena will be different from jurisdiction to jurisdiction, no matter where you are it should have a few key things:

• The words “Subpoena” or “Subpoena Duces Tecum” at the top
• Your name and address
• The date you are required to appear
• The place you are required to appear
• What you must bring with you
• The person making the request, along with contact information
• The signature of the person issuing the subpoena—either the clerk of court, a judge or magistrate, or an attorney

A regular letter, no matter how strongly worded, is not a subpoena.  Once you are sure you have been served with a subpoena, however, the most important thing to know is that this is not a polite request.  You cannot ignore the subpoena and hope it will go away—you should always contact legal counsel when you receive a subpoena.  Assistance of counsel is important because there are legal steps you may be able to take to quash or limit the subpoena, as we discuss in other posts.