• June 24, 2014

Civil litigators know that they have the power in both state and federal court in Minnesota to “issue subpoenas,” which essentially means that the lawyers can act like judges and issue court orders. That said, the rules for issuing subpoenas have safeguards built in to prevent abuse and if courts conclude that civil litigators have a hare-trigger, the issuance of improper subpoenas can back-fire badly.

From a recent decision of U.S. District Court Judge Joan N. Ericksen (D. Minn.), I think one can fairly infer the plaintiff’s lawyers’ intent — to call as witnesses for trial defendant’s executives who work and live outside of the state of Minnesota. It seems the strategy was to have the witnesses testify in other district courts in other districts and having their testimony contemporaneously transmitted to the U.S. District Court for the District of Minnesota.

There is, actually, a rule that would seem to permit such an arrangement, novel though that might sound to many trial lawyers (“for good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location”).

But folding Rule 43 into Rule 45 (the court rule governing subpoenas) was a step too far for the Court in Wagner v. Gallup, Inc. “The circumstances involving the two subpoenas at issue reflect a serious dereliction of that duty because no authority exists for the type of subpoenas issued,” the Court held.

The Court sanctioned plaintiff’s counsel $2,000.00.

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