What is a Subpoena?
The purpose of a subpoena is to obtain documentation or information from a person or entity who is not a party to the lawsuit. The subpoena will require YOU to appear, produce documents or both. The attorney serving you with the subpoena usually wants the information/documentation to support his clients’ case. However, ALL of the attorneys involved in the case will be examining your response to the subpoena and looking for reasons to name you as a party to the lawsuit.
Subpoenas REQUIRE you to do one or both of the following:
1) APPEAR
Subpoenas for an appearance require you to appear at a certain time and place to answer questions under oath before a certified court reporter. It may be at a trial, an arbitration, or just a pre-litigation deposition at an attorney’s office. They are all equally important and binding and you should never give legal testimony without being prepared and represented by legal counsel. Telling the truth is just the beginning!!
2) PRODUCE
Documents or other things (Subpoena Duces Tecum). Subpoenas for production may seem easier than a subpoena for an appearance, but can often be more problematic. This is especially true for real estate licensees who may be in possession of documents that do not belong to them, i.e., a buyers’ home inspection report when you represent the sellers. Great care must be taken to produce what is requested but to not produce anything that is protected.
Which brings us to….
What Do I Do After I Receive a Subpoena?
Advise your managing broker and contact your real estate errors and omissions provider — because the next actions you should take are: Call an attorney, Call an attorney, Call an attorney!!!
Check with your real estate E&O insurance agent and see if you have subpoena coverage. (CRES Real Estate Errors and Omissions plans can include a “Broad Form” endorsement which includes subpoena coverage to help cover the cost of document production, should that be asked of you. You may also consult with a CRES ClaimPrevent® attorney for advice.) Make sure that you submit your claim to your E&O carrier in a timely manner and keep documentation that the claim was submitted.
You will want to advise your own attorney of the subpoena. Having an attorney represent you regarding the subpoena could help keep you from being named as a party in the lawsuit, and that will be the best money you ever spent!
Once on board, your attorney will…
- Make sure that service of the subpoena was proper
- Raise any objections to the subpoena which may be appropriate
- Review your documentation and produce only relevant, non-privileged documents
- Communicate with the other attorney(s) on your behalf
- Prepare you for your deposition or appearance
- Attend the deposition or appearance with you, make sure that it is properly conducted, and that you are not required to answer any inappropriate questions
- Remain involved in the case on your behalf regarding any follow-up,including representing you as a witness at trial should that be necessary.
SUBPOENAS are important and how they are responded to is critical to whether you remain a third-party witness or become a party to a lawsuit.
DO NOT try and respond to a subpoena on your own. Representing yourself regarding a subpoena is worse than homeowners selling their house without a real estate licensee —do not do it!
See our webinar, podcast, and transcript on handling subpoenas for real estate professionals
Author: Kathryn Holbert, Esq. Kathryn@NVRELAW.com
NEVADA REAL ESTATE LAW, LLC 702-846-4444
Nevada Bar No. 10084
DISCLAIMER: This article is a brief overview of subpoenas and is intended to serve as a general guideline only. This article does not constitute legal advice. The reader should consult with a licensed, experienced attorney in their jurisdiction for any specific legal advice.
CRES Real Estate Errors and Omissions members should contact CRES Risk Management Legal Services for next steps.
