The state can request a warrant upon presenting, to an authorized judicial authority, the proper reasons for a warrant to issue. Once a warrant has been issued, the state can then search in the named locations for the named items, and seize those items.

For example, the state can claim that Bobby-Joe is operating a house of ill repute. They go to the judge and tell the judge, in writing, what evidence they have that Bobby-Joe is operating a house of ill repute. They tell the judge where they want to search, and what they are looking for.

Judge, we believe that Bobby-Joe is operating a house of ill repute because 3 to 5 women go to the house every evening and don’t leave until 0330, see provided photographs. That she is living beyond her documented means, see the two new homes she’s purchased with cash, the fancy cars, and the expensive jewelry.

We want to search the premises to locate her contacts and her books. We believe that these might be electronic. We wish to seize all electronic devices, any business related communications, any and all calendars, and any payment agreements.

The judge signs his X on the dotted line, then goes back to “snuggling” with one of Bobby-Joe’s employees.

The raid happens. During the search, the state finds drugs, firearms, and cash. They seize all the computers, phones, and digital storage devices and all the documents they can find. They seize the drugs and guns and cash.

It is all legal because the Judge signed the warrant.

This only works in a criminal investigation. In a civil investigation, the state is not involved in an authoritative stance. By this, I mean that the state can’t just get warrants issued because there are no crimes being alleged in the civil suit.

I am NOT a lawyer. I’m sure there are exceptions to this. But in general, when the state is a defendant in a civil case, they can just get a warrant to search for information they believe the plaintiffs hold.

Instead, the parties engage in discovery. In my opinion, discovery in Second Amendment Challenges is a waste of time, money, and resources.

If the argument is about the law, then there is no need for experts. The only experts in the courtroom are the lawyers and the judge. The lawyers present their arguments on why the judge should rule in their favor, the judge evaluates the arguments and then issues his judgement regarding the argument.

If the case is an as applied, then evidence might need to be presented.

Let’s consider the situation where a few individuals challenge a law for Second Amendment reasons. The FPC joins the suit as an organizational entity.

The FPC has to prove that the individuals are members of the FPC when the FPC joins the case.

It does not matter if they are life members, if they were gifted the membership, if they joined 20 years ago, 5 years ago, or 5 hours ago. The only thing that matters is that they are members.

The state can subpoena the plaintiffs for information that proves or disproves the membership. If that information has already been presented by the plaintiffs, then they can not.

The problem sometimes arises that the parties want formal proof. That might be a statement taken under oath or a notarized copy of the document proving membership.

When the court grants discovery, this means that the parties can start asking questions of the other party and of third-parties that can reveal evidence.

Which takes us to the real issue with discovery, it can be abused. Occasionally, a case exists purely to be able to do discovery. The plaintiffs don’t think they will win, but they want to be able to have a look behind the veil. The discovery process can be very intrusive.

There have been several cases where information gathered during discovery has “leaked”.

If I were to be subpoenaed regarding an article I had written, they would likely ask for all of my sources. For the most part, that is not an issue. I have the citations. But what if they asked me to produce all my communications with other pro-2A bloggers?

That gets a bit more difficult and it becomes intrusive. They might be claiming that I was coordinating with other bloggers. It certainly looks like that sometimes.

I don’t know how many times I’ve written an article and then the next day watched videos from people I respect covering the same subject and answering the questions I posed in my article. Did they read my article and let their muse loose? Did I read the same primary sources that they did?

There have been many instances where I watched the first part of a video to get the identification of a case, then did my research with the primary sources, wrote my article, then finished watching their video.

Back to subpoenas.

A subpoena may:

command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises;
Rule 45. Subpoena, LII / Legal Information Institute, (last visited Jan. 15, 2024)

That is very broad. They may also command somebody to attend a deposition.

The subpoena can specify the form or forms in which electronically stored information is to be produced. That could be a true pain for somebody like me. If they asked for a document in a format that my Linux boxes don’t produce, what do I do?

Once a subpoena has been created, it must be served. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named personid.. A subpoena cannot be served directly be either party. It must be a third person.

Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.

You might know that a subpoena has been issued against you, you do not have to make yourself available to be officially served. Just because they claim you were served, this is not enough.

When a process server serves a subpoena, they will certify that they have done so. When you send a letter by certified mail, requiring a signature, that might not be proof.

I have signed for certified mail for myself, for my wife, for my business, and for companies I was working for. If I signed for it, that does not mean it got to any third party.

The same is true for FedEx and UPS. Even if it says, “signature required”, that does not mean that it was actually delivered to the named person.

Why? Because it isn’t certified.

The person subpoenaed can object. There is a tight window for this of 14 days, or the time set forth in the subpoena. This means that the person would have to get a lawyer, explain to the lawyer why they don’t want to produce the commanded documents or things, and have it all filed in that time window.

One of the big things in the process is the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from Who gets to determine “significant expense?” If it takes me 30 hours to comply, that’s 30 hours of lost earnings. Is that enough to trigger “significant expense”?

The court may quash or modify a subpoena.

the court for the district where compliance is required must quash or modify a subpoena that: … requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden.

… the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: disclosing a trade secret or other confidential research, development, or commercial information; or disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party.

Formatting cleaned.

This is where the subpoena of Professor English is so hinky, why do they need all that information from him? Much of what is requested appears to me to be protected materials. It is not privileged, as that refers to attorney-client privilege.

Since I don’t see any filings from Professor English, the court can’t quash the subpoena for “may quash” reasons.

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By awa

2 thoughts on “Subpoena?”
  1. You mentioned that a search warrant requires stating the items to be taken, but then you go on to say that the authorities use the warrant to do the search, and will seize anything interesting they find whether listed or not.

    That clearly violates the plain English words of the 4th Amendment which speaks of “persons or things to be seized”. It is unreasonable for the state to claim that it can list “things to be seized” but for that list not to actually mean anything and that other interesting things can be seized as well.

    How did this sort of abuse come to be permitted? It seems that search warrants are really just treated as a meaningless formality and that in practice the authorities can search anything they want, grab anything they want, and not bother with much of any reason for doing so. This is particularly blatant in the FISA fake-court process, but it feels like that’s just the most extreme example of a general mockery.

    1. It is the “in plain sight”
      They warrant says they can search for all electronic storage devices. That would include thumb drives, the little digital cards that fit in your phone and a wealth of other tiny things. This means they can search anywhere that an item that size could be hidden. That means everywhere. On the other hand, if the warrant is for a Dodge Charger, they can’t search your dresser looking for it.
      Anywhere they can legally look is now “in plain sight”. So if they find your stash of pot while looking for your thumb drives, that is in plain sight and they can now confiscate that and arrest you.

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