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NONPARTIES AT THE PARTY

| Aug 7, 2020 | divorce |

What to do when you’re served with a subpoena and it’s not even your divorce!

Divorcing couples often can get through divorce negotiations or proceedings by cooperatively sharing necessary information between the parties. But in some high conflict or high net worth divorces, one or both parties may refuse to willingly exchange needed evidence.

When this happens, a party may use the subpoena to require testimony or the revelation of documents or physical items. Subpoenas – court orders to appear or to produce documents or things – can not only be served on the other spouse who is a party to the divorce proceeding, but also on third parties who have information relevant to the divorce.

It can be disconcerting to get a court subpoena, especially for someone else’s divorce.

Nonparty subpoena for documents or things

Florida allows a party to the divorce to request via subpoena from a nonparty access to documents or things for inspection and copying. For example, a divorcing person may need access to financial or business records that the other party is withholding that might show additional marital property subject to division.

If you get one of these subpoenas as a nonparty, you have the right to object.

Nonparty subpoena to appear as a court witness or produce documentary evidence

A subpoena in Florida to testify in a divorce will indicate a specific place and time to appear. A court appearance under subpoena may also require the witness to bring certain documents to court for review. The subpoena must describe exactly what is requested – “books, documents (including electronically stored information), or tangible things.”

If you get such a subpoena, you may ask the court to quash (cancel) the subpoena or to amend it if it is “unreasonable and oppressive.” As a condition of subpoena enforcement, the court may require the party making the request to first pay for the reasonable cost of production.

In response to a request for “electronically stored information,” you may object if it is not “reasonably accessible because of undue costs or burden.”

Third-party depositions

A nonparty to a Florida divorce proceeding may be subpoenaed to testify at a deposition, which is a privately held proceeding in conjunction with the divorce in which a witness gives sworn, recorded testimony in response to questioning by the involved attorneys. The subpoena may also describe documents or other tangible things relevant to the subject matter of the testimony that should be brought to the deposition.

If you are subpoenaed to testify at a deposition, you can retain your own lawyer to understand what your options are and to be present at the deposition to protect your interests.

What can the nonparty do?

Broadly and subject to court exception, a party to a divorce may only gather evidence from a third party that is relevant to the subjects involved in the court proceeding. If you are the subpoenaed party, you may object to the court to any request for information or evidence that you believe is not relevant to the divorce. The court could quash or modify the subpoena. There may be other grounds for objection to a subpoena such as a lack of personal jurisdiction or a request for information that would violate a privilege (like the physician-patient privilege). Another potential remedy might be a request to the court for a protective order or to quash a subpoena that is legally deficient such as having not been properly served on you.

Consult an attorney about your situation as a subpoenaed nonparty, potential legal remedies and proper procedures, but do not delay as deadlines are short. If the court finds that you have violated a subpoena, in some circumstances the court might order you to pay the costs and legal fees of the person who asked for the subpoena. In more serious cases, the judge could find you in contempt of court and subject to sanctions such as a fine, incarceration, garnishment of your wages, loss of your driver’s license and more.

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The Law Office of Forrest & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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