Let’s say you find yourself in the middle of a Utah divorce case and you don’t have an attorney (Bad idea, but we’ll go with it for the purpose of this example).
Let’s also say you think your spouse is hiding money at Wells Fargo. You want to get his records from Wells Fargo, but you have no idea how to do that.
Don’t worry, You’re not alone. Lots of attorneys don’t know the procedure for getting bank records either.
What you need to do is send Wells Fargo a subpoena. More specifically, you need to send a subpoena duces tecum, which is, more or less, a subpoena in which you ask someone to give you documents as part of answering the subpoena.
Piece of advice when you send Wells Fargo you subpoena duces tecum: send it to the person in Utah designated to accept subpoenas. If you send it out of state, then you have to follow a very different procedure which is much more complicated. You can find Wells Fargo’s designated person (usually called the “personal representative”) on the Utah Department of Commerce, Division of Corporations website (click here for the business entity page).
The advice I just gave you holds true for every company you serve with a subpoena. If at all possible, serve the company inside Utah. Again, serving outside Utah is much more complicated and time consuming.
So, we covered the basics, and I mean basics, of a subpoena duces tecum. There’s a lot more to the process, though.
If you’re going to do this on your own, I’d like to give you our internal subpoena checklist. It’s what our attorneys use to ensure they are correctly preparing and serving subpoenas. Hope it helps.
Checklist — Drafting Subpoena
Before drafting subpoena
_____ Read URCP 45
_____ Read URCP 4(d)
_____ Determine information sought/documents/testimony to be subpoenaed
_____ If you are requesting HIPAA-covered documents, attempt to obtain HIPAA Release from subject of records
_____ Determine upon whom (i.e., which individual or department) you will serve subpoena
_____ Determine the method of service (e.g., fax, personal service, mail)
_____ If you are serving an in-state company (or one with an in-state representative who can receive service), call the company and ask if they will receive service by mail or fax
_____ If you are serving an out-of-state company, call the company and ask if they will receive service by mail or fax
_____ If the out-of-state company will not accept service by mail or fax, check to see if the company is located in a state that has enacted the Interstate Depositions and Discovery Act (click here to see which states have enacted)
_____ If they are located in such a state, review and follow procedure outlined in the IDDA (click here for procedure outline)
_____ If they are not, research and follow the out-of-state subpoena service procedures for the state in which service will be made
_____ Using previous determination regarding what information or documents are desired (live testimony, documents, etc.), identify and use appropriate subpoena template
_____ Prepare notices and items that must be sent out with the subpoena, namely:
- Certification of records (if subpoena duces tecum)
- Notice to Persons Served with a Subpoena
- Objection to Subpoena
- Copy of current version of URCP 45
- HIPAA Release (if records are HIPAA covered and Release has been obtained)
- Declaration of Compliance with Subpoena
- Check (If subpoena requests appearance for testimony, calculate appropriate check amount and include)
_____ Once subpoena packet is complete, draft Notice of Intent to Serve Subpoena
_____ Review subpoena, ancillary required documents, and Notice of Intent to Serve to ensure everything is prepared correctly and included
_____ Provide all parties with Notice of Intent to Serve Subpoena (make sure to attach the subpoena as part of the Notice) one day before serving subpoena (providing proper notice is usually a matter of filing the Notice with the court)
_____ Email Notice of Intent to Serve Subpoena to client
_____ Serve subpoena packet
_____ Email subpoena packet to client
_____ Calendar subpoena due dates
_____ Follow up at subpoena due dates
_____ Respond to any motions to quash or objections that might be filed
_____ If subpoenaed party does not respond, follow up, if no response or refusal to respond for non-legitimate reason, file Order to Show Cause
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