Questions about subpoenaes...

Factual Questions
1

This GD thread is about Google being subpoenaed. In the course of the debate, I realized that I actually have little factual knowledge about subpoenas. From that thread, here are some questions I have:

Any and all answers are appreciated. Bonus question: after looking the word up, I realized that I had been misspelling it subpoenae, when it shouldn’t have the e on the end (I think I corrected all the mistakes for this post). While the dictionary has the plural listed as subpoenas, wouldn’t subpoenae also be acceptable?

2

Here is the rule that applies to the Google case:

http://www.law.cornell.edu/rules/frcp/Rule45.htm

3

BTW, here is a link to the actual subpoena. Google’s response begins on page five of the document.

4

It is pretty rare for a subpoena to be found to be "invalid. " They are sometimes quashed because for the reasons described above.

5

I’m not sure what you mean by this. The United States is “on trial” in the Google case. If you mean subpoenas issued (and enforced) against a stranger to the litigation (a non-party). That’s all pre-trial subpoenas are good for. Rule 30 governs depositions, which are initiated by a notice of deposition. http://www.law.cornell.edu/rules/frcp/Rule30.htm Rule 34 governs document requests between parties.

Here is a case where a testimonial subpoena was enforced against a non-party over an undue burden objection. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=dc&navby=case&no=947231a

6

One serious problem with Google’s proprietary/trade-secret objection is that such objections alone seldom justify denial of the requested documents. Google’s objection is that the information needs to be kept secret from its competitors. That can be accomplished by a protective order. The order could specify, for example, that only the Government and its expert witnesses can review the information and that the information can only be used for the purposes of this case. See, e.g, Manual for Complext Litigation (Fourth ed. 2004) at 62. http://www.fjc.gov/public/pdf.nsf/lookup/MCL40001.pdf/$file/MCL40001.pdf (pdf).

Similarly, claims of undue burden can be met by an order requiring the party seeking the information to pay for the costs of production. *Id. * at 70.

7

No. The English word subpoena is derived from two Latin words:

*sub * - preposition, meaning under
*poena * - noun, in the ablative case, meaning penalty

The idea is that the person receiving the subpoena is required to attend court, under penalty of some punishment for non-attendence.

It would not make any sense to try to pluralise it by using the nominative plural form poenae. If anything, the plural (under punishments) would be sub poenis. English has run the two words together into one and then simply added an s to form the plural.

I found this quote on the website of the Supreme Court of NSW:

Source

8

Some more documents in the case. http://blog.searchenginewatch.com/blog/060119-161802

9

In the U.S., Cuncator, the terms subpoena ad testificandum and subpoena duces tecum are still in use, occasionally. There are instances (such as when you subpoena a government agency, at least according to some courts) where a subpoena duces tecum is valid but a subpoena ad testificandum is unenforceable without the permission of the agency, so the distinction is occasionally important.

–Cliffy

10

Thanks, Gfactor. If I understand this correctly, effectively anyone can be subpoenaed for anything. I say “effectively” just to acknowledge that there are restrictions – that I think can be summed up under two headings: undue burden (e.g., travel expenses or distance) and confidentiality (e.g., trade secrets). What I’m most interested in was the most poorly worded question above (#7). So, let me try again…my apologies if, after I ramble a bit, it still isn’t clear.

In essence, what I was trying to get at is the justification for issuing a subpoenae. I fully appreciate the need for information when there is a criminal trial, but the Google case isn’t that; in fact, they have no relation to the actual court case whatsoever outside of being a third party (a company that happens to gather/have data that might be useful). But that still doesn’t really get at what I’m asking either; the same could be said of any witness. I suppose it’s more about the nature of the original case itself – it seems odd (and wrong, I might add) to issue a subpoenae to support passage of a law. In other words, if the government, in their priveleged position of being the only entity which can pass law, does not have the pertinent information to justify said law, it is an indication that it is a bad law (or perhaps just premature). Akin to providing citations in a GD thread; the person making the argument does the legwork. As there are legal differences between “the government” and a person as legal entities in a court case (not being a lawyer, I’m not sure what they are, but isn’t there a restriction, for instance, on the ability to sue the government?), I’d expect there to be differences in the ability to gather information also.

I hope that was a little more comprhensible; to put this back in GQ territory, my question(s) would be – is the only requirement for issuance of a subpoenae (as it relates to this context) the fact that the information will be used in a court case? Despite the fact that the outcome of the court case does not actually affect an aggrieved party (that is, I think it would be a fair to put it, that it equates the government with a person, as the aggrieved party in the original case is the government)? Are there other examples of subpoenas being used in support of the passage of a law?

11

I don’t know Latin, but I do note that subpoenae is sometimes used, rightly or wrongly.

http://www.un.org/icty/blaskic/trialc1/order-e/70228spm.htm (UN)

http://www.ftc.gov/os/adjpro/d9313/040420respnoticeresubpoenae.pdf (pdf) (attorney practicing before the FTC)

http://www.lawsociety.com.au/uploads/filelibrary/1099005938640_0.38297488760261194.pdf (Director of Legal services, NSW police)

http://www.mcg.edu/Services/Legal/respond.htm (Legal affairs department, Medical College of Georgia)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/5590301&invol=1 (Texas Court of Criminal Appeals)

http://caselaw.lp.findlaw.com/nycodes/c63/a17.html (New York statute)

OTOH Rule 45© (quoted above) uses “subpoenas.”

12

Congress does it all the time. But I get your meaning.

Cliffy identifies one of the key differences: Sometimes it’s harder to subpoena the government.

In this particular case, as this pdf of the government’s brief says, the Supreme Court ruled in 2004 that “on this record, the Government has not shown that the less restrictive alternatives proposed by respondents should be disregarded. Those alternatives, indeed, may be more effective than the provisions of COPA.” http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/ashcroft2004.html The government has taken this as an invitation to prove that current filtering methods still permit kids to see some porn. That’s their position.

General rule on discovery:

http://www.access.gpo.gov/uscode/title28a/28a_4_5_.html

The evidence does not even need to be admissible at trial. The only requirement is that it appear reasonably calculated to lead to the discovery of admissible evidence.

The aggreived party in the original case is the ACLU and other parties who didn’t want to be subject to the law. The government is the petitioner on appeal, but the ACLU was the plaintiff in the trial court.

I’m sure there are, but none come to mind at the moment.

13

I know enough Latin to know that it’s used wrongly.

In Latin, sub poena* is a prepositional phrase. The phrase is adverbial in function. There is no such thing as a plural for the phrase as a whole.

In English, the phrase has evolved into a single word, used as a noun. This noun has a plural, which is a standard English “add S” plural. This English noun does not reflect a Latin noun and there is no Latin plural.

Obviously, some folks have confused the final “a” of what was originally a Latin ablative case singular with the final “a” used in some Latin words in the nominative case singular, erroneously supposed it was a Latin word, and taken it upon themselves to give it a Latin nominative plural ending. They goofed.

14

OK. So then there is no (legal) basis for the objection found in the MecuryNews editorial? To wit (quoted in the GD thread):

15

Oh, and thank you to the grammar/Latin mavens for clearing up the use of the word subpoena. I didn’t want you to think your replies went unnoticed or unappreciated…

16

Not in those terms. Courts tend to do some cost-benefit analysis when they rule on undue burden objections. But the idea of discovery is exactly that–for parties to get information so that they can build their cases. There is no general rule against requesting raw data for analysis.