Subpoena Envy

Administrative subpoenas offer great opportunities for abuse by the Government. A pencil pusher in a regulatory agency has the freedom to fire off requests for documents, sometimes thousands of documents, without bearing any cost at all. And without any judicial oversight.

It works like this: A wild hair sprounts in the office of some civil servant. They want more information about something. So they fire off a subpoena. The target must consult counsel, who will then inform the hapless target that the choices are compliance or an expensive court battle to try to quash or limit the subpoena.

So the target produces documents; his lawyer reviews them, culling through the dettritus to separate those documents subject to some privilege from those which are not, all while an hourly clock happily ticks on the eternal billing machine. Meanwhile, the bureaucrat cum lawyer requesting all this sits back, feet on the desk, smoking another cigar courtesy of the people. The government's costs, you see, are eternally fixed, and we pay them whether we like it or not.

The documents are supplied, the government looks at them and then concludes it was fishing in a dry hole: There's no there there and so the bureaucrat moves on to some other fool's errand.

Query: Why doesn't the law to recover the government to bear the costs of compliance with its requests when those requests are found to be foolish or without merit? It will not do to say that such a fee-shifting requirement is inconsistent with the so-called American rule. That common law principle is designed to assure that ordinary people have the right to press their claims in a court of law; we try to lower the barriers to the pursuit of whatever justice the courts can dispense.

But I though the whole point of a constitution was to limit assertions of government power. Letting the feds hide behind the American rule while they deal out little more than tripe with administrative subpoenas is simply wrong. It encourages government to prey on the very people it serves.
Comments (1)
Posted on April 16, 2009 at 1:30 pm by DBB
I agree that such a rule - to make the government ...
I agree that such a rule - to make the government pay the cost for frivolous subpeonas, sounds good, but I think it would have unintended consequences. After all, a good bureaucrat can't have that cost coming out of his department, so he'll instead just make sure to invent some case no matter what the subpeona shows - or perhaps keep issuing more until he strikes gold. Now instead of a waste of time just for documents, you need to waste time and money to defend a suit filed by the government. Or just have the specter of one hanging over your head.

I think a better rule would be one that just eliminates the power of subpeona in the first place without a court reviewed order that has to justify it, with a high burden placed on the government (and no need for the target to spend any money unless that burden is met and the subpeona is issued).
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


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