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Introduction
This Opinion addresses problems that have been brought to the attention of the Ethics Committee (the "Committee") related to the use of subpoenas duces tecum in civil actions and proceedings. The Committee has been made aware of instances when lawyers have used subpoenas duces tecum in civil actions to obtain privileged information without complying with the Rules of Civil Procedure. In other instances, subpoenas duces tecum have been used in civil actions to obtain an exclusive review of documents or other physical evidence, or a review before opposing counsel or an unrepresented defendant, because no notice has been given to the adversary party. In still other instances, the witness or custodian of records on whom a subpoena duces tecum has been served is knowingly misled into disclosing privileged or confidential information that the witness would not be required to reveal. Finally, the Committee has been made aware of instances when lawyers have received privileged or confidential documents or other tangible things pursuant to a subpoena duces tecum, because the witness subject to the subpoena inadvertently delivered those privileged or confidential materials.
Syllabus In a civil action in Colorado state court or federal court, 1 a lawyer may not issue or cause to be issued a subpoena duces tecum for production of documents or other tangible things at a deposition without giving notice to every other party to the action, and the designation of the materials to be produced pursuant to the subpoena must be attached to or included in the notice, unless a court order provides otherwise. Similarly, in a civil action in federal court, a lawyer may not issue or cause to be issued a subpoena duces tecum for production of documents or other tangible things or inspection of premises before trial without giving notice to every other party to the action. Also, in a civil action in Colorado state court, a lawyer may not issue or cause to be issued a subpoena duces tecum for production of documents or other tangible things except at a deposition, hearing, or trial, unless the parties agree otherwise or a court order provides otherwise. It is the Committee’s opinion that knowingly violating these requirements is unethical.
Further, in the course of a civil proceeding, 2 if a lawyer communicates with a witness on whom a subpoena has been served, it is unethical for a lawyer knowingly to mislead the witness during any communication into disclosing privileged or confidential information or documents that the witness would not otherwise knowingly reveal or be compelled to reveal.
Finally, in the course of a civil proceeding, if a witness on whom a subpoena has been served inadvertently delivers to the lawyer issuing the subpoena documents that the lawyer knows to be, or that appear on their face to be, privileged or confidential, 3 then the lawyer receiving such documents has an ethical obligation to refrain from reviewing the material further after becoming aware of the privileged or confidential nature of the material. The attorney receiving such documents also has an ethical obligation to notify the adverse party if unrepresented or the adverse party’s lawyer and the producing witness and to take reasonable steps to notify the person entitled to invoke the privilege with respect to the documents that he or she possesses such materials and either to follow the instructions of the person who is entitled to invoke the privilege with respect to the documents or to refrain from using the documents until a definitive resolution is obtained from the court.
Opinion
Procedural Requirements under the Federal and Colorado Rules of Civil Procedure
The function of a subpoena is to compel the attendance of witnesses and/or the production of documents and other tangible things, so the court may have access to all relevant information to decide the cases before it. See generally 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2451 (1995). There are two types of subpoenas. A subpoena ad testificandum compels the attendance of a witness to testify, and a subpoena duces tecum compels the production of documents and other tangible things. Id. Both kinds of subpoena may be issued either for a hearing or trial or as part of the pretrial discovery process. Id., §§ 2451, 2452.
Significantly, the Federal Rules of Civil Procedure differ from the Colorado Rules of Civil Procedure in certain respects regarding subpoenas duces tecum. One such difference is whether a subpoena duces tecum may be used to compel the production of documents only, like a request for production under Rule 34, or whether the production of documents pursuant to a subpoena duces tecum must be at a deposition, hearing, or trial. 4 Following the 1991 amendments, the Federal Rules expressly authorize the issuance of a subpoena duces tecum to produce and permit inspection and copying of designated documents or tangible things at trial, a hearing, or a deposition or independently, like a request for production under Rule 34. Fed. R. Civ. P. 34(c), 45(a)(1). See Advisory Committee Note to 1991 amendments to Fed. R. Civ. P. 34 and 45, reprinted in 134 F.R.D. 668, 670. See also David D. Siegel, Federal Subpoena Practice under the New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197, 205-207 (1992). In contrast, Colorado Rule of Civil Procedure 45 only authorizes the production of documents pursuant to a subpoena duces tecum "at a deposition, hearing or trial." C.R.C.P. 45(a).
Thus, in a civil action in Colorado state court, a lawyer who only wishes to review documents in the possession of a non-party but who is faced with a refusal by that non-party to disclose the documents must schedule a deposition of that non-party and subpoena the documents. See R. Haydock & D. Herr, Discovery Practice at 200 (1988). In such a civil action, after notice of the deposition has been served on all parties and the subpoena duces tecum has been served on the non-party witness, the parties may agree to waive the need for a court reporter. The "deponent" in these stipulated "depositions" is not examined, but essentially acts as a messenger who delivers the documents to the requesting lawyer for review. These stipulated "depositions" are consistent with Colorado Rules of Civil Procedure 30 and 45 and are ethically permissible. On the other hand, in a civil action in federal court, a lawyer who wishes only to review documents in the possession of a non-party and who is faced with a refusal by that non-party to disclose the documents may issue a subpoena duces tecum for production, inspection, and copying of the documents, without the need for a deposition. Fed. R. Civ. P. 34(c), 45(a)(1), (c)(2)(A). See 8A Charles A. Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice and Procedure, § 2209 at 392-393 (1994); David D. Siegel, supra, 135 F.R.D. at 205-207.
Likewise, the Federal Rules of Civil Procedure and the Colorado Rules of Civil Procedure differ in certain respects regarding notice of subpoenas. Effective January 1, 1998, if the subpoena compels the attendance of a witness at a hearing or trial in a civil action in Colorado state court, the Colorado Rules of Civil Procedure require the party issuing the subpoena to serve a copy of the subpoena, including a complete list of documents and things to be provided pursuant to the subpoena, upon all parties of record in the manner prescribed by Colorado Rule of Civil Procedure 5(b) promptly after the service of the subpoena upon the person named therein. C.R.C.P. 45(c). In contrast, the Federal Rules of Civil Procedure do not require notice of a subpoena compelling the attendance of a witness, with or without documents, at a hearing or trial. See Fed. R. Civ. P. 45. Likewise, the Federal Rules of Civil Procedure require a party issuing a subpoena duces tecum to produce and permit inspection and copying of designated documents or tangible things independent of a deposition, hearing, or trial or to inspect premises before trial must give prior notice of the commanded production of documents or inspection of premises on each party in the manner prescribed by Federal Rule 5(b). Fed. R. Civ. P. 45(b)(1). See Advisory Committee Note to 1991 amendments to Fed. R. Civ. P. 45, reprinted in 134 F.R.D. at 670. See also David D. Siegel, supra, 135 F.R.D. at 207. In contrast, as discussed above, the Colorado Rules of Civil Procedure do not authorize the issuance of a subpoena duces tecum for the production of documents other than at a deposition, hearing, or trial.
However, the Federal Rules of Civil Procedure and the Colorado Rules of Civil Procedure are similar regarding notice of subpoenas for deposition on oral examination. Under both the Federal and Colorado Rules of Civil Procedure, if the subpoena is for a deposition on oral examination and/or the production of documents at such a deposition, then the party desiring to take the deposition must give reasonable notice in writing to every other party to the action, and the designation of the materials to be produced as set forth in the subpoena must be attached to or included in the notice. Fed. R. Civ. P. 30(b)(1); C.R.C.P. 30(b)(1).
Rules 30 and 45 of the Federal and Colorado Rules of Civil Procedure confer vital protections on the witness subject to the subpoena as well as the other parties to the civil action. It is only through the requirement of notice that the other parties to the civil action are able to inspect and copy the documents sought in the subpoena. Similarly, if an adverse party claims some personal right or privilege with regard to the documents sought (for example, that the documents belong to that party and are privileged or protected work product), it is only through the requirement of notice that the adverse party is able to seek appropriate relief from the court, such as an order quashing or modifying the subpoena or a protective order. Fed. R. Civ. P. 26(c), 45(c)(3)(A), (B); C.R.C.P. 26(c), 45(b), (d)(1). See 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, §§ 2458, 2459.
Knowingly violating the requirement in Colorado Rule of Civil Procedure 45(a) that documents responsive to a subpoena be produced only at a deposition, hearing, or trial; or the requirement in Federal and Colorado Rule of Civil Procedure 30(d)(1) to give notice of deposition subpoenas; or the requirement in Federal Rule of Civil Procedure 45(b)(1) to give notice of any subpoena requiring only the production of documents or inspection of premises before trial; or the requirement in Colorado Rule of Civil Procedure 45(c) to give notice of subpoenas for hearing or trial violates the Rules of Civil Procedure, may deprive a party or witness of vital protections, and is unethical. See Colo. RPC 3.4, Comment [1] (evidence in a case is to be marshaled fairly, even if competitively, by the contending parties); 3.4(c) (knowing disobedience of rules of tribunal); 4.1 (misrepresentation); 4.3 (dealings with unrepresented persons); 4.4 (respect for rights of third persons); and 8.4(c) (lawyers shall not engage in dishonesty, fraud, deceit or misrepresentation). See also Kentucky Bar Association, Ethics Opinion E-304 (1985 as amended) (an attempt to circumvent the Civil Rules as written or customarily applied in the particular forum, with a view to dispensing with notice to an opponent or securing some unfair advantage, is unethical); Georgia State Bar Disciplinary Board, Opinion 40 (1984) (a subpoena issued pursuant to Rule 45 of the Civil Practice Act should be issued only for depositions that have actually been scheduled by agreement between the parties or where a notice of deposition has been served upon all parties and should not be issued when no deposition has been scheduled). In certain cases such action may also constitute criminal conduct. See C.R.S. § 18-4-412 (class 6 felony to obtain a medical record or medical information without proper authorization).
Two important points should be noted in this regard. First, not every violation of the Rules of Civil Procedure constitutes a violation of the Rules of Professional Conduct. See Colo. RPC 3.4(c). Rather, as indicated above, it is the knowing violation of the requirements in the Rules of Civil Procedure that is unethical. Second, the Rules of Civil Procedure are subject to change, including the Rules of Civil Procedure on which this Revised Formal Opinion are based. As such, lawyers confronting the issues addressed in this Revised Formal Opinion should determine whether the applicable Rules of Civil Procedure have changed since this Opinion was issued.
Communications with Subpoenaed Witnesses
Pursuant to the Rules of Civil Procedure, the witness on whom a subpoena is served is not required to disclose the information or documents for which he or she has been subpoenaed until the proceeding at which the witness has been commanded to appear. Nevertheless, a lawyer in preparing a case may want to communicate with a subpoenaed witness in advance of the proceeding. As the Committee discussed in Formal Opinion 65, these interviews are ethically permissible and encouraged if the witness is informed that there is no legal obligation to submit to the interview and no other legal or ethical impediment exists. See Colo. RPC 4.1 and 4.3 (truthfulness in statements to others and dealing with unrepresented persons).
However, if a lawyer intends to communicate with a nonparty witness subsequent to the witness being served the subpoena, but prior to the document production, deposition, hearing or trial referred to in the subpoena, that lawyer should not, during the course of any communication with the non-party witness, knowingly mislead the witness into disclosing privileged or confidential information.
During any communication with a non-party witness, a lawyer should keep in mind that the imbalance in knowledge and skill between a lawyer and a lay witness may cause even well intentioned acts of the lawyer to have a coercive impact on the witness and induce the witness to disclose privileged or confidential information. Therefore, whenever a lawyer communicates with a non-party witness, he or she should clearly identify himself or herself and state the reason for the communication.
Inadvertent Delivery of Privileged Or Confidential Material
The Committee recognizes that, despite giving the appropriate admonitions noted above and even in the absence of any direct communication with the witness on whom a subpoena duces tecum has been served, a witness may simply send documents or other tangible things sought by the subpoena to the lawyer requesting them in an attempt to obtain a release from the subpoena and an appearance at a proceeding.
Under such circumstances, a lawyer who receives documents or other tangible things that the lawyer knows to be, or that appear on their face to be, privileged or confidential should refrain from reviewing the material further after becoming aware of the privileged or confidential nature of the material. The lawyer receiving such documents also should notify the adverse party if unrepresented or the adverse party’s lawyer and the producing witness and should take reasonable steps to notify the person entitled to invoke the privilege with respect to the documents that he or she possesses such materials, and that lawyer should either follow the instructions of the person entitled to invoke the privilege with respect to the materials or refrain from using them until a definitive resolution is obtained from the court or other tribunal. See ABA Formal Opinion 94-382, Unsolicited Receipt of Privileged or Confidential Materials (July 5, 1994); ABA Formal Opinion 92-368, Inadvertent Disclosure of Confidential Materials (November 10, 1992).
Conclusion
The use of a subpoena duces tecum in discovery in a civil action to obtain documents or other tangible things from a witness without notice to the other parties or their counsel knowingly in violation of the Rules of Civil Procedure violates the Rules of Professional Conduct and is unethical. Similarly, the use of a subpoena duces tecum in a civil action in Colorado state court to obtain documents or other tangible things other than at a deposition, hearing, or trial knowingly in violation of the Colorado Rules of Civil Procedure without the agreement of the other parties to the action or by court order violates the Rules of Professional Conduct and is unethical. Likewise, it is unethical in any civil proceeding knowingly to mislead a witness on whom a subpoena has been served into disclosing privileged or confidential information or documents that the witness would not be required to reveal. Finally, in any civil proceeding, if a witness on whom a subpoena has been served inadvertently delivers to the lawyer issuing the subpoena documents that the lawyer knows to be, or that appear on their face to be, privileged or confidential, the lawyer receiving such documents should notify the adverse party if unrepresented or the adverse party’s lawyer and the producing witness and should take reasonable steps to notify the person entitled to invoke the privilege with respect to the documents that he or she possesses such materials, and the lawyer receiving such documents should either follow the instructions of the person entitled to invoke the privilege with respect to the documents or refrain from using them until a definitive resolution is obtained from the court or tribunal.
1. Under the Colorado and Federal Rules of Civil Procedure, there is one form of action known as a "civil action," which includes all actions, suits and proceedings of a civil nature, whether cognizable as cases at law or in equity or admiralty and in all special statutory proceedings, with the exceptions stated in Rule 81. Fed. R. Civ. P. 1, 2; C.R.C.P. 1(a), 2.
2. The term "civil proceedings" is broader than the term "civil actions." For purposes of this Opinion, "civil proceedings" includes not only "civil actions" as defined in Federal and Colorado Rules of Civil Procedure 1 and 2, but also the cases and special statutory proceedings excepted from the definition of civil actions in Rule 81 of the Federal and Colorado Rules of Civil Procedure and civil administrative proceedings in which subpoenas are allowed.
3. For purposes of this Opinion, "confidential" documents are those that are subject to a legally recognized exemption from discovery and use in a civil action or proceeding, even if they are not "privileged" per se. Examples of such confidential documents may include those subject to the work product doctrine, e.g., Fed. R. Civ. P. 26(b)(3); C.R.C.P. 26(b)(3); documents subject to a protective order that discovery not be had, that certain matters not be inquired into, or that the documents not be revealed or be revealed only in a designated way, Fed R. Civ. P. 26(c)(1), (4), (7); C.R.C.P. 26(c)(1), (4), (7); records of services to the mentally ill pursuant to Article 10 of Title 27 of the Colorado Revised Statutes, § 27-10-120(1), C.R.S.; reports of child abuse or neglect, § 19-1-307(1)(a), C.R.S.; reports of AIDS or HIV-related illness, § 25-4-1404(1), C.R.S.; and records of a professional review committee or the committee on anticompetitive conduct of the Colorado State Board of Medical Examiners or a governing board of any organization of health care providers which has authority to take final action regarding the recommendations of any authorized professional review committee, § 12-36.5-104(10)(a), C.R.S. In contrast, for purposes of this Opinion, "confidential" documents do not include documents as to which some person has an expectation of privacy or confidentiality, but which are not subject to a legally recognized exemption from discovery or use in a civil action or proceeding, such as research, development or commercial information and personal correspondence or diaries (assuming that some other privilege does not otherwise attach to the letters or diaries, such as the attorney-client privilege or the Fifth Amendment privilege against self-incrimination).
4. Federal Rule of Civil Procedure 45 provides, in relevant part:
Every subpoena shall
(A) state the name of the court from which it is issued; and
(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and
(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and set forth the text of subdivisions (c) and (d) of this rule.
A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.
Fed. R. Civ. P. 45(a)(1) (emphasis added).
Similarly, Federal Rule of Civil Procedure 34 provides, in relevant part:
A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.
Fed. R. Civ. P. 34(c).
In contrast, Colorado Rule of Civil Procedure 45 provides, in relevant part:
For Attendance of Witnesses; Form; Issue. Subpoenas may be issued under Rule 45 only to compel attendance of witnesses, with or without documentary evidence, at a deposition, hearing or trial. Every subpoena shall state the name of the court, and the title of the action; and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.
(b)For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein . . .
(d) Subpoena for Taking Depositions; Place of Examination
(1) A deposition subpoena, upon notice to all parties to the action, may require the production of documentary evidence which is within the scope of discovery permitted by Rule 26.
C.R.C.P. 45(a), (b), (d)(1) (emphasis added).
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