You’ve Been Served… Or Have You?
Avoiding the Pitfalls Associated with Subpoenas
By Heather R. Rutland, Shareholder
For anyone working in public schools, the category of “things I didn’t sign up for” seems to be expanding rapidly. It is increasingly routine, for example, to receive a subpoena for either testimony or documents in conjunction with your work as an educator. While no one would recommend that you ignore a subpoena, there are rules that must be followed by anyone seeking to issue and serve a subpoena. School staff are often unaware of these rules and can inadvertently make it easier to be subpoenaed, which can create a distraction from school-related duties and place school staff in the middle of legal disputes having nothing to do with them. More problematic is how frequently districts are asked to produce student or employee records via subpoena. If the subpoena is not properly served under the Texas Rules of Civil Procedure, this can impact a district’s ability to lawfully produce otherwise protected records.
Under the Texas Rules of Civil Procedure, subpoenas have to contain certain language and may only be issued by judges, court clerks, and attorneys. Tex. R. Civ. P. §§ 176.1; 500.8. The subpoena must also include a witness fee of $10.00 per day, and the party summoning the witness must pay the fee for at least one day “at the time the subpoena is served on the witness.” Tex. Civ. Prac. & Rem. Code § 22.001. It is extremely rare that such a fee accompanies a subpoena left at the campus front office, and this failure renders the subpoena out of compliance with Texas law.
Another common mistake is allowing someone serving a subpoena to use a short cut simply because the witness is at work. When an individual is subpoenaed who is not a party to the case (a third-party witness), “[the] subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law.” Tex. R. Civ. P. § 176.5(a) (emphasis added).
All too often, the helpful staff in the front office willingly accept or even sign for a subpoena intended for an employee or administrator. However, the subpoenaed employee or administrator must be served personally with the subpoena and witness fee. Id. Not requiring the subpoena to be personally served and accepting service on behalf of another could start the clock for lodging an objection despite the fact the employee is still unaware of the subpoena’s existence. A better practice would be for front office staff to decline to accept service, forcing the process server to effectuate personal service somewhere besides the workplace.
Similarly, any district that permits submission of subpoenas through an electronic medium (open records portal, district website, etc.) would do well to discontinue this practice since there is no way to verify whether it is a lawfully issued subpoena accompanied by the required witness fee, and hitting “send” does not qualify as “service” under the Texas Rules of Civil Procedure.
Sometimes, a subpoena seeks records rather than testimony (though the document frequently combines the two, making things especially confusing). Often the district and its employees are not even parties to the litigation, and the subpoena is being used to gather information and records for someone else’s dispute. In these cases, it is critical that you understand what is being requested and what you are obligated to provide. If, for example, the subpoena seeks student records otherwise protected by Family Educational Rights & Privacy Act (FERPA), before producing any of these records the district should do two things:
- Ensure that the subpoena was correctly drafted and served according to Texas law;
- Notify the parent(s) of the student of the subpoena.
If the subpoena was not a “lawfully issued subpoena,” the district is unlikely able to produce the records requested without a separate FERPA release. 34 CFR § 99.31(a)(9)(i). Moreover, the parent must be apprised of someone seeking their student’s records and be given the opportunity before the records are released to file a Motion to Quash, seek a protective order, or assert other objections to the subpoena. 34 CFR § 99.31(a)(9)(ii). A similar analysis should be undertaken when the subpoena seeks employee records that would otherwise be protected under the Texas Education Code (i.e., Tex. Educ. Code § 21.355). Like parents, employees should be notified and given the opportunity to object or quash before the district releases any records.
The law recognizes that some requests are too onerous and unfair to the receiving party. Considerations such as distance (travelling more than 150 miles to appear for a deposition) or sufficient time (having only five days to collect and produce thousands of pages of materials held in an off-site warehouse) are legitimate reasons to object to even a lawfully issued subpoena.
Contacting your school district attorney to determine next steps upon receiving a subpoena is good standard practice. Your counsel is also in the best place to help determine whether the district can or should file a Motion to Quash or otherwise object to the subpoena or how to best comply with the request to stay within the bounds of relevant privacy laws. Moreover, often if your counsel simply reaches out to the subpoenaing attorney, they can reach certain agreements, such as the district providing records without the necessity of an employee testifying, or make other arrangements to minimize the burden on the testifying school district employee.
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