WHERE IS THE BEST PLACE TO HIDE SOMETHING FROM A LAWYER? [HINT: IT’S IN THE RULES]
May 11, 2011 § 4 Comments
When you file an objection to a subpoena duces tecum, do you still need to produce the things sought under seal? Do you need to track down a judge for an emergency hearing on the objection? What do you need to do to protect your client after you file the objection?
Nothing. MRCP 45(b) allows the objection to stop the process until the party issuing the subpoena takes further action. It’s right there in the rule, in black and white.
This particular operation of MRCP 45(b) is the subject of an informative post by Anderson, who was apparently faced with the task of educating three other lawyers on the point. Philip Thomas follows up on his blog with notes about a couple of other nuances of the same rule that you should know about. I would repeat them here for you, but that would only make you less likely to look at the rule yourself, which would only punctuate Thomas’s point that most lawyers do not bother to read the rules.
Lawyers do not bother to read the rules. One of my pet peeves. Just the other day I had a lawyer in my office who proudly produced proof of certified mail service of process on a state department. No one appeared for the defendant agency. That may be, I pointed out, because MRCP 4(d)(5) requires process “Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.” Really? Didn’t know that.
In my elementary school days, I had as a teacher a vicious nun who would rap you in the back of the head with a ruler if you didn’t tow the line. One thing she made us do was to keep an open dictionary on the desk before us as we read a book. Every time we encountered an unfamiliar word, we were required to look up the word or have inch-marks imbedded in our scalps. At first I complied to avoid the pain. Over time, however, I found myself doing it voluntarily, and by the time I reached high school age, I had amassed quite a vocabulary.
Maybe as a lawyer you should keep your rule book on your desk — open — and every time you have to issue process, or file a motion to compel, or file a counterclaim, or a 12(b)(6) motion, you can glance at the rule and refresh your recollection. And if you really want to make an impression, you could rap yourself in the back of the head with a ruler every time you fail to do it. Okay, I’m kidding about that last part.
Of course, my point applies to the statutes and cases, too. How often do you glance back at the applicable statute before you file that petition to sell property in an estate, or close a guardianship? How often do you go back and re-read exactly what it was the supreme court said in Riley v. Doerner before you try that custody modification, or Ferguson before you try that equitable distribution case?
I am convinced that the most significant difference between the good lawyers and the mediocre-to-poor ones is that the good lawyers take time to try to do it right, making sure they know the rules, statutes or cases behind what they are doing. Which category will you place yourself in?
The Better Chancery Practice Blog 
Regarding subpoenas duces tecum, do you read Rule 45 to require prepayment of the witness and mileage fees even where personal attendance is sought?
Also, I haven’t found any case law which addresses whether the validity of a subpoena is affected by the fact that it is served without the fees. Do you know of any?
If the ten day time period for responding with an objection has passed, should I serve and/or file a written objection (attaching the documents I think are relevant/required by the Rules) and file a motion to quash? The SDT was served 8/26/2016 and orders my client to bring certain document with him to the hearing on 9/14/2016.
Just my opinion, but I would file the objection and ask the court myself to rule on it before 9-14.
[…] Primeaux of the 12th Mississippi Chancery Court did a post yesterday entitled, “WHERE IS THE BEST PLACE TO HIDE SOMETHING FROM A LAWYER? [HINT: IT'S IN THE RULES].” He […]