Disciplinary opinion clarifies rules on records subpoenas in family court

#79 on my November 14, 2011 list of “One hundred things I don’t know about South Carolina family law,” reads, “Can one issue subpoenas duces tecum without an order of discovery?” The November 16, 2016 Supreme Court disciplinary opinion in In the Matter of Margaret D. Fabri, 418 S.C. 384, 793 S.E.2d 306 (2016), answers that question in the negative.

In Fabri, Attorney/Respondent issued subpoenas that commanded the records custodian appear at a temporary hearing and produce various documents related to the opposing party’s employment. The cover letter to the subpoenas provided: “[i]f you are able to produce the requested documents to me prior to the hearing date, it may not be necessary for your records custodian to appear.” Respondent did not provide opposing counsel notice of these subpoenas. She signed the subpoenas, certifying that they were “issued in compliance with Rule 45(c)(1) and that notice as required by Rule 45(b)(1) ha[d] been given to all parties.”

Rule 45(b)(1) reads that “[u]nless otherwise ordered by the court, prior notice in writing of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b) at least 10 days before the time specified for compliance.” Respondent argued that she was not required to provide the other party the subpoenas because they did not require the production of the records prior to the hearing. Although she recognized she invited the records custodian to produce the documents before the hearing, she attempted to dismiss this fact by asserting it was merely a request not a command. She asked that the matter be dismissed.

The Office of Disciplinary Counsel (ODC) sought a finding that Respondent had violated the Rules of Professional Conduct in issuing these subpoenas. Specifically the ODC alleged (1) Respondent issued two subpoenas without providing notice to opposing counsel as required under Rule 45(b)(1), SCRCP; (2) Respondent nevertheless certified that notice to opposing counsel had been provided; and (3) the subpoenas commanded the production of documents in contravention of Rule 25 of the South Carolina Rules of Family Court (“SCRFC”), which prohibits discovery in the family court without a court order or a stipulation by both parties.

ODC recommended a public reprimand and a majority of the hearing panel recommended a public reprimand (some members recommended an admonition). Respondent appealed.

The Supreme Court found that Respondent committed misconduct and approved a public reprimand rather than an admonition (in part because Respondent had two prior findings of misconduct related to the issuance of subpoenas). Its opinion contains three important directives regarding the issuance of subpoenas, one of which is specific to family court and resolves question #79 I pose above

First, the Supreme Court interpreted Rule 45(b)(1) “as requiring that notice be given to the opposing party anytime a party issues a subpoena commanding the production of documents, regardless of when the documents are commanded to be produced.” (Emphasis in original).

Second, in a footnote, the Supreme Court held:

It has also come to our attention that some attorneys will receive documents from a witness prior to the time the witness was commanded to appear with the documents. Once the attorney receives the documents, the witness is generally released from their obligation to appear without any notice to the opposing party, who is still under the expectation that the witness will appear at the trial or hearing with the requested documents. We caution against this practice. Further, we conclude not only must an attorney notify the opposing party when subpoenaing the production of documents, but the opposing party must also be notified anytime the party issuing the subpoena receives the documents prior to the time requested in the subpoena. To hold otherwise would circumvent the purpose of the notice provision and would allow the party issuing the subpoena to gain a competitive advantage over the opposing party who may have no knowledge of the contents of the documents until the trial or hearing.

Finally, and specific to family court, the Supreme Court “conclude[d] Respondent’s issuance of the subpoenas contravened Rule 25, SCRFC, which prohibits discovery in the family court without a court order or a stipulation by both parties, since neither condition was in effect when Respondent issued the subpoenas. … It is abundantly clear from the record that Respondent issued the subpoenas as a discovery tool to obtain the financial records of the opposing party because Respondent had not yet received the financial declaration. The subpoenas were clearly an attempt by Respondent to discover information and not to compel the appearance of a witness at a temporary hearing.”

Three important lessons from Fabri. First, when issuing subpoenas requesting the production of records, those subpoenas must be served on all parties of record, whether or not the subpoena is requesting production of those records prior to trial. Second, if one receives records in response to such a subpoena prior to the due date, one must immediately notify all parties of this fact and one should be cautious about releasing that witness from the subpoena. Finally, one cannot issue subpoenas for records in family court absent an order of discovery except for subpoenas to produce records at trial. Even in that circumstance, one should not seek to obtain those records prior to trial.

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