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The Catch-all Discovery Tool: Subpoenas.

Subpoenas are the weapon of choice for uncovering the truth. Subpoenas are different from other types of discovery because they are focused on non-party witnesses. That is, people or businesses that have information relevant to your case, but are not part of the lawsuit directly as a party.

For example, in nearly every accounting case you need to subpoena bank records to determine if the information provided to you by the Trustee is accurate. When you obtain bank records directly from the bank, you can double check the accounting and know just how accurate the information is. Without a bank-records subpoena, you are just guessing and hoping the information is correct.

Subpoenas can be issued by any party once you have an active lawsuit pending in court. Lawyers can simply sign a subpoena and issue it because lawyers are technically “officers of the court.” A party without a lawyer can have an subpoena issued by first filling it out and then having the clerk of the court sign it. Of course, you need to know who to issue the subpoena to, so if you don’t have the banking information you need to ask for that from the opposing side using either interrogatories or a document request.

One odd misunderstanding I hear from time to time is the idea that the court will issue subpoenas or somehow investigate the case independently. Not true. There are attorneys at the court that will review the accounting petition (or any other petition for that matter) and compile notes on what appears to be wrong with the pleadings, but that is mainly from a procedural standpoint. Our common law system of justice does not allow the Court to independently investigate claims (except for things like conservatorships), that’s your job to do.

Subpoenas can be used for any third-party witnesses so you can obtain bank records, medical records, Legalzoom.com records, escrow files, and even the deposition testimony of any relevant witness. Subpoenas are essentially the catch-all technique used to obtain evidence from non-parties.

There is a cost to issuing a subpoenas and you do have to pay for copies of the records for which you are asking. But when the records tell a story about your case, there’s no better tool to gather evidence than the good-old subpoena.