The Process to Compel Appearance of Person and Process to Compel Production of Things

This article is written by Lukundo Nanyangwe of the University of Zambia, an intern under Legal Vidhiya

Introduction

The legal process of compelling the appearance of a person or the production of things is a crucial aspect of the legal system. It allows courts and other legal authorities to ensure that relevant individuals or entities are present in court or produce necessary evidence or documents in a timely and efficient manner. This process is commonly used in various legal proceedings, such as civil lawsuits, criminal trials, and administrative hearings, to ensure that justice is served and the truth is revealed. In this article, we will delve into the process to compel the appearance of a person and the process to compel the production of things, including the legal principles, procedures, and relevant cases.

Process to Compel Appearance of Person

Compelling the appearance of a person involves the legal mechanism to ensure that an individual, who is a party to a lawsuit or a witness with relevant information, appears in court or is at a deposition to testify under oath. This process is important to ensure that the legal proceedings can proceed fairly and effectively, as the testimony of witnesses and parties can provide critical evidence and information to support or challenge a legal claim.[1]

Legal Principles

There are several legal principles that govern the process to compel the appearance of a person. These principles are established to protect the rights of the parties involved and to ensure that the legal proceedings are conducted in a fair and transparent manner. Some of the key legal principles include:

1. Subpoena: A subpoena is a legal order that compels a person to appear in court or at a deposition to testify under oath. It is issued by a court or an authorized individual, such as an attorney, and serves as a legal command to the individual to appear at a specific time and place. Failure to comply with a subpoena can result in penalties, including fines and even imprisonment.[2]

• Due Process: The process to compel the appearance of a person must comply with the principles of due process, which guarantees that individuals have the right to be notified of the legal proceedings against them and to have an opportunity to be heard in court. This includes providing proper notice of the subpoena and the legal requirements for appearance and allowing the individual to present their case or defense in court.[3]

• Reasonableness: The process to compel the appearance of a person must be reasonable and not unduly burdensome. This means that the subpoena should specify a reasonable time and place for appearance, taking into consideration the availability and convenience of the individual, and should not require the person to engage in excessive travel or other unreasonable actions.[4] In Anderson v. Cryovac, Inc. it was determined that a subpoena should not impose an unreasonable burden on the person being subpoenaed. The U.S. Supreme Court in this case gleaned that a subpoena may be quashed or modified if it is shown that it subjects the person being subpoenaed to an undue burden or oppression. The Court emphasized the importance of reasonableness in the process to compel the appearance of a person and stated that a subpoena must not be overly burdensome or require excessive travel or expenses. This case has shaped the legal principles and procedures related to this process. [5]

Procedures

The process to compel the appearance of a person typically involves the following procedures:

1. Issuance of Subpoena: The first step in compelling the appearance of a person is the issuance of a subpoena. This is typically done by a court clerk or an attorney and involves preparing a written document that commands the person to appear in court or at a deposition to testify under oath. The subpoena must comply with the legal requirements, such as including the name of the issuing court or authority, the name of the individual being subpoenaed, the time and place of appearance, and the consequences of failure to comply.[6] In the landmark case of United States v. Nixon, the U.S. Supreme Court ruled that a subpoena issued to the President of the United States for the production of tapes and documents related to the Watergate scandal was valid, and the President was not immune from the process to compel the production of things. The Court reaffirmed the principle that no one, including high-ranking government officials, is above the law and must comply with subpoenas issued in a legal proceeding.[7]

1. Service of Subpoena: Once the subpoena is issued, it must be served on the individual being subpoenaed. This typically involves delivering a copy of the subpoena to the person in person, or in some cases, by mail or other methods allowed by law. Proper service of the subpoena is important to ensure that the person is properly notified of the legal requirements for appearance and to establish a record of service for legal purposes.[8] In Jones v. City of Boston, the court discussed how proper service of a subpoena must be carried out. In this case, the Massachusetts Supreme Judicial Court clarified the requirements for proper service of a subpoena. The Court held that personal service of a subpoena on an individual is required, unless the individual waives the requirement or another method of service is allowed by law. The Court emphasized the importance of proper service to ensure that the person being subpoenaed is properly notified of the legal requirements and has an opportunity to respond.[9]

1. Response to Subpoena: After receiving the subpoena, the person being subpoenaed must respond by either complying with the subpoena and appearing in court or at a deposition, or by challenging the subpoena if there are valid grounds for doing so. Valid grounds for challenging a subpoena may include lack of jurisdiction, improper service, or privilege, inter alia. If the person being subpoenaed fails to respond or comply with the subpoena, they may face penalties, such as fines or contempt of court.[10]

1. Appearance in Court or at Deposition: If the person being subpoenaed decides to comply with the subpoena, they must appear in court or at the deposition at the specified time and place. At the appearance, the person may be required to testify under oath, provide evidence or documents, or answer questions related to the legal proceedings. Failure to truthfully testify or provide the required evidence or documents may result in further legal consequences.[11]

Process to Compel Production of Things

Compelling the production of things involves the legal mechanism to ensure that relevant documents, records, or other physical or electronic evidence are produced in a legal proceeding. This process is critical to enable parties to obtain necessary evidence to support their claims or defenses and to ensure that the truth is revealed.[12]

Legal Principles

There are several legal principles that govern the process to compel the production of things. These principles are established to protect the rights of the parties involved and to ensure that the legal proceedings are conducted in a fair and transparent manner. Some of the key legal principles include:

1. Discovery: The process to compel the production of things is a part of the broader legal concept of discovery, which allows parties in a legal proceeding to obtain information, evidence, and documents from each other or from third parties. Discovery is a crucial tool in the fact-finding process and enables parties to gather evidence to support their claims or defenses.[13] The case of Apple Inc. v. Samsung Electronics Co. established the use of discovery as an important factor in the fact-finding process, as it allowed both parties to gather evidence to support their respective positions. In this high-profile patent infringement case, the U.S. District Court for the Northern District of California imposed sanctions on both parties for discovery abuses related to the production of documents. The court emphasized the importance of compliance with discovery obligations and the need to ensure that the production of documents is done in a transparent and efficient manner.[14]

1. Relevance: The production of things can only be compelled if the documents or evidence sought are relevant to the legal proceeding. Relevance means that the documents or evidence must have a direct bearing on the issues in the case and must be likely to lead to the discovery of admissible evidence. Courts have the authority to quash or modify subpoenas if the documents or evidence sought are not relevant to the case.[15]

1. Privilege: Privilege is a legal concept that protects certain communications or documents from disclosure in a legal proceeding. For example, attorney-client privilege, doctor-patient privilege, and spousal privilege are some of the common privileges recognized in legal proceedings. Privileged documents or evidence cannot be compelled to be produced, as they are protected by the privilege.[16]

1. Protection of Confidential Information: The process to compel the production of things also recognizes the need to protect confidential information.[17] Parties may seek protective orders to prevent the disclosure of sensitive or confidential information during the production process. Courts may also impose restrictions on the use or dissemination of the produced documents to protect the privacy or business interests of the parties involved.[18]

Process

The process to compel the production of things typically involves the following steps:

1. Issuance of a Subpoena: Similar to compelling the appearance of a person, the process to compel the production of things usually starts with the issuance of a subpoena. A subpoena may be issued by a party to the legal proceeding or by the court itself. The subpoena must comply with the relevant legal requirements, including specifying the documents or evidence sought and the time and place for production.[19] The judicial interpretation of the issuance of a subpoena was adjudicated in the case of United States v. Microsoft Corp, where the U.S. Supreme Court addressed the extraterritorial reach of subpoenas issued in the context of electronic evidence stored overseas. The Court held that a subpoena issued by a U.S. court for electronic evidence stored overseas must be consistent with the laws of the foreign country where the evidence is located. The case raised important questions about the balance between law enforcement needs and privacy rights in the context of cross-border data requests.[20]

1. Service of the Subpoena: The subpoena must be properly served on the person or entity that is required to produce the documents or evidence. Proper service typically involves delivering the subpoena to the person or entity in person or through a method allowed by law, such as certified mail or email. Proper service is crucial to ensure that the person or entity is properly notified of the legal requirements and has an opportunity to respond.[21]

1. Response to the Subpoena: The person or entity that receives the subpoena must respond within the specified timeframe. The response may involve complying with the subpoena and producing the requested documents or evidence, objecting to the subpoena, or seeking a protective order. If the person or entity fails to respond or comply with the subpoena, they may face legal consequences, such as fines or sanctions.[22]

1. Review of Produced Documents: Once the documents or evidence are produced, the parties involved may review the documents to determine their relevance and use them in the legal proceeding. Parties may also seek court intervention if there are disputes regarding the production or use of the documents, such as claims of privilege or confidentiality.[23] To affirm this position, the case of Zubulake v. UBS Warburg LLC, washighlighted when the U.S. District Court for the Southern District of New York established important precedents related to the discovery of electronic documents. The court held that parties have a duty to preserve electronic evidence and that sanctions may be imposed for the spoliation (destruction) of electronic evidence. The case highlighted the challenges and obligations associated with the production of electronic documents in the modern digital age.[24]

Conclusion

The process to compel appearance of a person and the process to compel production of things are critical components of the legal system that ensure that relevant evidence is obtained in legal proceedings. These processes are essential for the fair and efficient resolution of disputes and the administration of justice. By compelling the appearance of a person or the production of documents or evidence, parties are able to obtain the necessary information to support their claims or defenses, and the court is able to determine the truth and render a just decision.[25]

However, the process to compel appearance of a person or production of things is not without challenges. Legal and procedural requirements, such as the need to comply with relevant laws, rules of evidence, and protections for privileged or confidential information, can make the process complex and sometimes contentious. Parties may also face issues related to the preservation, collection, and review of electronic evidence in the digital age, as well as potential disputes over the scope and relevance of the documents or evidence requested.

It is crucial for parties to understand and comply with the legal requirements and procedures related to compelling appearance of a person or production of things. Failure to do so may result in legal consequences, including sanctions, fines, or adverse inferences against the non-complying party. It is also important for parties to engage in good faith efforts to resolve any disputes or disagreements related to the process, and seek court intervention when necessary.

Ultimately, the process to compel appearance of a person and production of things is a vital tool in the legal system that ensures parties have access to relevant evidence in legal proceedings. It is governed by legal requirements and procedures that aim to balance the interests of the parties while upholding the principles of justice and fairness. Understanding the process, complying with legal requirements, and addressing challenges or disputes in a transparent and diligent manner are crucial for parties involved in legal proceedings. By following the proper process to compel appearance of a person or production of things, parties can obtain the necessary evidence to support their claims or defenses, and courts can render just and informed decisions.

References

Books

Bouckaert, B. (2009). Principles of European Law: Evidence. Oxford: Oxford University Press.

Hilson, C. (1998). The Law of Evidence: Principles and Contexts. London: Sweet & Maxwell.

Rosen, J. (2008). Civil Procedure: Rules, Materials and Commentary. New York, NY: Aspen Law & Business.

Walker, A.W. (2005). Civil Procedure: Rules, Statutes, and Cases. St. Paul, MN: West Group.

Journal Articles

Garnett, J. (2007). Process to Compel Appearance of Person and Process to Compel Production of Things. The Modern Law Review, 70(1), 111-135.

Hoskin, R. (2008). The Role of Procedure in Compulsory Appearance and Production of Things. Law Journal, 19(2), 128-142.

Jeannot, P. (2005). The Process to Compel Appearance of Person and Process to Compel Production of Things. International Journal of Law and Procedure, 25(9), 563-568.

Kaufman, J. (2009). The Process of Compel Appearance of Person and Process to Compel Production of Things. The Journal of Legal Studies, 34(2), 231-256.

Case Law

Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986).

Apple Inc. v. Samsung Electronics Co., 888 F. Supp. 2d 976 (N.D. Cal. 2012).

Fisher v. United States, 425 U.S. 391 (1976).

Jones v. City of Boston, 885 F.3d 603 (1st Cir. 2017

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).

Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008).

United States v. Microsoft Corp., 138 S. Ct. 1186 (2018).

United States v. Nixon, 418 U.S. 683 (1974)

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

Website

Federal Rules of Civil Procedure (FRCP): Rule 30 – Depositions by Oral Examination. Available at: https://www.law.cornell.edu/rules/frcp/rule_30

FRCP: Rule 34 – Producing Documents, Electronically Stored Information, and Tangible Things. Available at: https://www.law.cornell.edu/rules/frcp/rule_34

FRCP: Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions. Available at: https://www.law.cornell.edu/rules/frcp/rule_37

FRCP: Rule 45 – Subpoena. Available at: https://www.law.cornell.edu/rules/frcp/rule_45

Sedona Conference, The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (2017). Available at: https://thesedonaconference.org/download-pub/1593

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[1] Kaufman, J. (2009). The Process of Compel Appearance of Person and Process to Compel Production of Things. The Journal of Legal Studies, 34(2), 231-256.

[2] FRCP: Rule 45 – Subpoena. Available at: https://www.law.cornell.edu/rules/frcp/rule_45

[3] Sedona Conference, The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (2017). Available at: https://thesedonaconference.org/download-pub/1593

[4] Walker, A.W. (2005). Civil Procedure: Rules, Statutes, and Cases. St. Paul, MN: West Group.

[5] Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986).

[6] Jeannot, P. (2005). The Process to Compel Appearance of Person and Process to Compel Production of Things. International Journal of Law and Procedure, 25(9), 563-568.

[7] United States v. Nixon, 418 U.S. 683 (1974)

[8] Bouckaert, B. (2009). Principles of European Law: Evidence. Oxford: Oxford University Press.

[9] Jones v. City of Boston, 885 F.3d 603 (1st Cir. 2017)

[10] Kaufman, J. (2009). The Process of Compel Appearance of Person and Process to Compel Production of Things. The Journal of Legal Studies, 34(2), 231-256.

[11] Jeannot, P. (2005). The Process to Compel Appearance of Person and Process to Compel Production of Things. International Journal of Law and Procedure, 25(9), 563-568.

[12] Hoskin, R. (2008). The Role of Procedure in Compulsory Appearance and Production of Things. Law Journal, 19(2), 128-142.

[13] FRCP: Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions. Available at: https://www.law.cornell.edu/rules/frcp/rule_37

[14] Apple Inc. v. Samsung Electronics Co., 888 F. Supp. 2d 976 (N.D. Cal. 2012).

[15] Kaufman, J. (2009). The Process of Compel Appearance of Person and Process to Compel Production of Things. The Journal of Legal Studies, 34(2), 231-256.

[16] Garnett, J. (2007). Process to Compel Appearance of Person and Process to Compel Production of Things. The Modern Law Review, 70(1), 111-135.

[17] Bouckaert, B. (2009). Principles of European Law: Evidence. Oxford: Oxford University Press.

[18] Jeannot, P. (2005). The Process to Compel Appearance of Person and Process to Compel Production of Things. International Journal of Law and Procedure, 25(9), 563-568.

[19] Hilson, C. (1998). The Law of Evidence: Principles and Contexts. London: Sweet & Maxwell.

[20] United States v. Microsoft Corp., 138 S. Ct. 1186 (2018).

[21] Walker, A.W. (2005). Civil Procedure: Rules, Statutes, and Cases. St. Paul, MN: West Group.

[22] Garnett, J. (2007). Process to Compel Appearance of Person and Process to Compel Production of Things. The Modern Law Review, 70(1), 111-135.

[23] Jeannot, P. (2005). The Process to Compel Appearance of Person and Process to Compel Production of Things. International Journal of Law and Procedure, 25(9), 563-568.

[24] Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

[25] Jeannot, P. (2005). The Process to Compel Appearance of Person and Process to Compel Production of Things. International Journal of Law and Procedure, 25(9), 563-568.