#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.
Given how much lying goes on at temporary hearings with respect to income, and given that most pro se people won’t bring a paystub to the Court if requested to do so (and even some not pro se don’t fill out financials properly with regard to income), I think this rule about no subpoenas prior to an order allowing discovery is going to breed more litigation and costs for fixing child support and alimony due to under-reported income. I believe Tim Madden did a Hot Tips seminar long ago addressing this very issue, and noticing that Rule 45 pertaining to subpoenas was outside the discovery section of the Rules. It would seem that this also means that subpoenas cannot be issued to employers after a final hearing when filing a contempt due to failure to pay, in order to show the party’s ability to comply with the order? What then? Do final orders need to start authorizing on-going discovery then for purposes of contempt actions? I think Rule 25 needs to go away. I know of no cases in 23 years of practice where a Court declined to grant discovery.
All the more reason to seek orders of discovery before seeking temporary relief. In fact I have blogged on this topic.
I think footnote 6 is troublesome. It reads in part, “we conclude not only must an attorney notify the opposing party when subpoenaing the production of documents, but the opposing party must be notified anytime the party issuing the subpoena receives the documents prior to the time requested in the subpoena.” Of course, Rule 45(b)(1), SCRCP already requires notice to the opposing party when issuing a subpoena duces tecum.
However, I see no support whatsoever in Rule 45 for the Court’s proposition that you must notify the other party if you receive the requested documents prior to the deadline set forth in the subpoena. In fact, I see nothing in the rule that requires notice at all when you receive the requested documents. Rule 45(c)(2)(A) already requires the receiving party to provide the other party with copies of the documents received upon written request, and my standard practice is to immediately send an email to the other party requesting copies of whatever they requested as soon as I’m given a copy of the subpoena.
The justification in footnote 6 also doesn’t make sense. The Court’s justification is that to not require an attorney to give notice when they receive documents prior to the subpoena deadline “would allow the party issuing the subpoena to gain a competitive advantage over the opposing party”. If that’s the case, then why require notice of the subpoena to be given to the other party only 10 days before the deadline in the subpoena? Why not make the notice contemporaneous with service of the subpoena? The 10-day provision is nonsensical.
If the Supreme Court wants to discipline people for not doing things that aren’t actually set forth in the rules, they should amend the rules to make it clear.
I am also very surprised the Court found a violation of Family Court Rule 25. My belief, and the belief of the vast majority of other attorneys with whom I’ve discussed this, is that since subpoenas are set forth in an entirely different section (“Trials”) of the Rules of Civil Procedure than are other traditional discovery methods (which are in a section called “Depositions and Discovery”), they are not considered discovery for purposes of that rule.
I don’t think Fabri was disciplined for either of those two issues (and certainly not for the issue noted in footnote 6). However her issuing ex-parte records subpoenas in the guise of trial subpoenas was, in my opinion, clearly disingenuous. If she had not suggested that these record providers could get out of going to court by delivering her the documents beforehand, and had she not previously been admonished twice for improper subpoena usage, I suspect should would have received a letter of caution or admonition.
It also didn’t help that she doubled-down by arguing her actions were acceptable rather than apologizing for doing so. I wouldn’t want opposing attorneys issuing such ex-parte subpoenas and showing up at hearing with records they received from subpoenas for which I had no notice. As you note, Rule 45 allows the other attorney to demand copies of subpoenaed records upon their receipt by the subpoenaing party. Without notice, how is one to demand copies?
She was clearly found to have violated Rule 25. I agree she wasn’t found to have violated the issue raised in footnote 6, but my point stands that the interpretation of that rule is unreasonable. And regarding the notice provision, I think you’re sort of making my point. Do away with the 10 day provision and require subpoenas duces tecum to be served on opposing counsel at the same time they’re sent out for service to the ultimate recipient.
I agree she was found to have violated Rule 25. I am not convinced that violation led to her sanction.
I am curious as to why you are not convinced. Care to elaborate?
Because the conduct the opinion focuses upon is almost solely the Ex-parte nature of the request and the duplicitous cover letter.
I agree with Ryan Phillips that under SCRCP subpoenas are not discovery & are in fact different methods to obtain information. One uses discovery to obtain information from a party but uses a subpoena to obtain information from a 3rd party. And the sanctions for failure to comply are very different between discovery v. subpoena.
Under the court’s reasoning, what do you do when you file a contempt action after the case is closed? Do you have to file a motion for discovery at the same time you file a rule? Then do you have to wait to get an order of discovery before you issue a subpoena to have a witness appear at the rule?
You can still subpoena witnesses to final hearings. A contempt action is a final hearing.
No doubt Fabri knew exactly what she was doing with her subpoena. She has a long record of self serving legal manipulation. She is undoubtedly deceptive and unethical. Winning at all costs is not a legal tenant to stand behind. Shame she did not get more serious consequences. I’m sure it will happen in the future as she persists in ‘bending’ the rule of law despite her long tenure in law.
Greg: Since you seemed to know “why” the Supreme Court issued a public admonishment to me let me get some things straight. I am not a serial abuser of the subpoena rules or any other South Carolina Rules of Civil Procedure. I believed a hearing subpoena did not have to be copied to opposing counsel. The Supreme Court disagreed so that is the end of that. What is more annoying is that in the Order the Court states that I also had two prior issues with improper subpoenas and I think that needs explaining. Approximately 25 years ago I issued a foreign subpoena to a lawyer and called the lawyer and told him that he didn’t have to send me anything pursuant to the subpoena but I did want him to know that there was an actual case pending. In those days in order to get a foreign subpoena issued you had to get a Letter Rogatory signed by the Chief Administrative Judge of the Family Court or any other Court and forward it on to the Clerk of Court where you were seeking production of documents in order for that court to issue a subpoena. Virtually no attorneys that I knew followed that procedure. They issued foreign subpoenas. When I issued the subpoena to the lawyer 25 years ago, my opposing counsel was married to a lawyer who sat on the ODC Panel and, consequently, he filed a complaint against me. At the time I spoke with Barbie Seymour and told her that I thought a CLE needed to be presented on how to issue foreign subpoenas since I believed it was regularly done by members of the Bar. I offered to present such a seminar and did, including, creating various handouts to interested attendees. In fact, for months after my presentation I got numerous requests for my materials regarding how to issue foreign subpoenas. Secondly,
the other alleged “misuse” of the subpoena power was never used as the basis of an admonition to me. The reason was that approximately 10 years ago I took over a case from another attorney. The file was a mess! I diligently went through it and believed that there was a Rule to Show Cause pending. I filed a Notice of Appearance and issued two subpoenas, both of which were copied to opposing counsel. When opposing counsel received the subpoenas she advised me that there was no longer a Rule pending and, therefore, no basis for the subpoenas. I apologized to opposing counsel and withdrew the subpoenas. I was never sanctioned for those subpoenas and, in fact, the issue of those subpoenas was raised to the Supreme Court by an entirely different attorney with a “grudge match” who had nothing whatsoever to do with the case in which those subpoenas had been issued. The Supreme Court did not sanction me in any way for those subpoenas and, in fact, verbally admonished the attorney who attempted to allege misconduct on my part. So, when you state in your blog on my case that “…had she not previously been admonished twice for improper subpoena usage, I suspect she would have received a letter of caution…” With all due respect, you don’t know what you’re talking about. I think there is definitely something wrong with a disciplinary system when an attorney can sleep with his client’s wife and receive a private reprimand but the issuance of what I considered to be a hearing subpoena without notice to opposing counsel deserves a public admonishment. I think some good came out of my admonishment since we got rid of the notion that an attorney had to have an Order of Discovery to issue subpoenas. I trust that you will post this explanation regarding “prior subpoenas” issued by me since I believe that portion of the Supreme Court’s Order was unjustified for all of the above stated reasons.
Posted. I will note the irony that within months of your reprimand, in part, for issuing a subpoena without an order of discovery, the Supreme Court authorized automatic discovery in family court. I clearly don’t think you should have been reprimanded for that.