Do-it-yourself subpoena: a useful tool in an administrative hearing
By Mickell Summerhays and Jamie Hanson, Lang & Klain Law Firm
In an administrative proceeding, there are two types of subpoenas: One compels a witness to attend the hearing, and the other – more common and often more useful – compels a party to produce documents.
Obtaining a Subpoena. Getting either type of subpoena is a two-step process.
First, you create the actual subpoena document, which includes the title of the case, what the subpoena is asking for, the deadline for compliance, etc. The Office of Administrative Hearings offers a downloadable subpoena form and instructions.
Second, your subpoena must be signed by an administrative law judge. To obtain a signature, you must send to the Office of Administrative Hearings (1) your completed subpoena document (discussed above) and (2) a statement of reasonable need – a simple statement describing why the witness’s presence or the requested documents are relevant.
If the judge agrees that there is a reasonable need for the subpoena, he or she will sign it. However, if the judge finds the subpoena’s request to be “unreasonable or oppressive,” he or she can modify it or refuse to issue it.
Serving the Subpoena. After the judge signs the subpoena, it can be served. The process of serving a subpoena in an administrative case is the same as serving a subpoena in a civil case: Any person who is not a party to the case and who is at least 18 years old can serve a copy of the subpoena.
Next, the person who served the subpoena must provide proof of service. The proof of service should include a certified statement from the person who served the subpoena, including the date the subpoena was served, the manner it was served, and the name of the person who was served (e.g., it was hand-delivered to John Smith on December 8).
Finally, the party that served the subpoena must file the proof of service with the Office of Administrative Hearings.
Getting What the Subpoena Requests. In an ideal world, once the steps above are completed, the work is done; i.e., the subpoenaed party complies and sends what is requested.
However, in some cases, the party receiving the subpoena does not respond. If that happens, the first step should always be to reach out to the subpoenaed party to try to resolve the issue. A phone call, with written follow-ups documenting the phone call, is best. (Having had a phone call can prove important later, if the party still refuses to comply). It is important to use reasonable efforts trying to get the subpoenaed party to comply – which, again, will be important later. What is “reasonable” depends on the circumstances.
If, even after trying to resolve the issue, the subpoenaed party still refuses to comply, you still have options available to you, but they are a little more complicated.
Enforcing the Subpoena at the Superior Court. Arizona law requires a party to enforce an administrative subpoena at the Superior Court. The Superior Court must enforce the subpoena “in the manner provided by law for the service and enforcement of subpoenas in civil matters.” That means enforcing the subpoena under Rule 37 of the Arizona Rules of Civil Procedure.
Under Rule 37(a), the Superior Court can compel a party to comply with the subpoena, because “a party may move for an order compelling disclosure or discovery.” To move for such an order, you must first have tried in good faith to work with the subpoenaed party to resolve the issue (such as via the phone calls and emails discussed above).
The strange part: Subpoenas enforced under Rule 37 normally arise under existing civil cases. But this kind of enforcement requires you to file a new civil case. Attorneys at Lang & Klain have had success calling the action an “Application to Compel [Party’s] Compliance with a Subpoena Duces Tecum” and noting in the caption that the application is “Relating to” a specific administrative case number.
Therefore, to succeed in enforcing a subpoena at the Superior Court, you must file:
an “application to compel” that briefly describes the case history, subpoena, and why the court should enforce the subpoena (both legally and factually); and
a good-faith-consultation certificate, pursuant to Rule 7.1(h), that explains that you have conferred, or tried to confer, with the subpoenaed party. (Rule 7.1(h) requires an in-person or telephonic conversation, not just letter or email.)
Finally, if the Superior Court orders the subpoenaed party to comply with the subpoena and produce whatever is requested, you can seek the payment of expenses. Attorneys at Lang & Klain have been successful getting an award of attorneys’ fees and costs in enforcing an administrative subpoena.
Practical Considerations. If you are willing to go through the steps above to enforce a subpoena at the Superior Court, there are a few important considerations.
First is an issue of timing. Although the Superior Court should hear the case quickly, administrative hearings are usually held in relatively short windows. You will likely have to request that the administrative hearing be continued for 60 days or more. That means deciding whether getting what the subpoena requests is worth delaying the administrative case.
Second is an issue of the practice of law. In contrast to an administrative hearing, a corporation or LLC cannot represent itself before the Superior Court; it must be represented by an attorney. If a party is seeking an administrative subpoena on behalf of a business, it may not be able to ask the Superior Court to enforce the subpoena without an attorney.
On the plus side, if you follow the procedure described above, there is a good chance the Superior Court will grant expenses in enforcing the subpoena. In other words, you may not incur additional costs to procure legal help in enforcing the subpoena.
Questions? Contact Mickell Summerhays at 480-534-4885 or by email.
Mickell Summerhays is an associate attorney in Lang & Klain's commercial litigation and construction law practice groups
Jamie Hanson is a Certified Administrative Law Specialist and a former Chief Counsel for the Arizona Registrar of Contractors
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