The two types of subpoenas generally seen at a school district are a subpoena for a person to appear and testify and a subpoena deuces tecum (also known as a “subpoena-bring-your-stuff”) which is a subpoena for not only a person to appear to testify, but it is also for the records the person controls. One or the other of these subpoenas will be used to secure school district personnel and/or students to appear in either a criminal or a civil action.
If an employee is subpoenaed at the school, the process server (the person delivering the subpoena) needs to physically hand the subpoena to the person. The civil subpoena must be accompanied by a check that pays a minimal amount for the mileage from the person’s place of residence to the court where the person will testify. Failure to do these things may result in the court being unable to discipline a witness who fails to attend the trial.
When records are requested under a subpoena deuces tecum, the District can charge a “reasonable fee” for the copies and the time to make the copies. “Reasonable fee” is actually defined in A.R.S. §12-351 as “twenty-five cents for each page of standard reproduction of documents and the actual costs for reproduction of documents that require special processing plus the reasonable clerical costs incurred in locating and making the documents available billed at the rate of twenty-five dollars per hour per person.” This formula may be more or it may be less than the amount the District would charge under a public records request. While the District cannot demand payment for the documents before turning them over, it can demand payment at the same time as the documents are released–sort of like a prisoner exchange. By the way, no checks will accompany a criminal subpoena, but the witness still has to attend the trial.
There are other special rules regarding subpoenas and records that may be pertinent to schools. For instance, a subpoena for a school witness to appear at a civil deposition may be quashed (nothing to do with the vegetable) if the witness is expected to travel outside of the county in which the witness resides or does business. Should student records be subpoenaed, a copy of the subpoena must be sent to the parent(s) of the child whose records are being subpoenaed along with an explanation that the records will be disclosed pursuant to the subpoena unless the parent has the subpoena quashed by the Court. The parent simply informing the school of his/her objection is not sufficient to override a subpoena.
Sometimes subpoenas for a teacher’s personnel records are written broadly enough to require disclosure of the teacher’s evaluations. Teacher evaluations are protected from disclosure by law (A.R.S. §15-537). If the party demanding the teacher’s records will not agree that the evaluations are not able to be disclosed, a motion to quash the subpoena as to those records will be required. Similarly, as part of the fingerprint information service, a criminal background check received by the District should not be released and may require a motion to be made to the Court to review the records in camera (nothing to do with photography–it just means in private) and determine what, if anything, should be disclosed.
Since the rules dealing with subpoenas as to what must be disclosed, how the subpoena must be served, and what the subpoena can and cannot require a District to produce are highly technical, school districts should notify their attorney when a subpoena arrives in order to avoid a finding of contempt on one hand or ending up with a lawsuit for unlawful disclosure on the other.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Candyce B. Pardee at 928.373.3409, log on to udallshumway.com, or contact an attorney in your area.