How to Respond to a Subpoena

Anytime a ministry is involved in a lawsuit, it may find itself on the receiving end of a subpoena. Ministries can be prepared to deal with these and other court orders by knowing what is expected and how best to respond.

What is a subpoena?

A subpoena is a court order to provide evidence related to a lawsuit that is currently before the court. This might involve an order for an individual to testify in person or to produce documents or other information that will be used as evidence in a trial.

Subpoenas are generally governed by the court’s rules of procedure. They are most often issued during what’s called the “discovery phase” of litigation, where both sides are gathering evidence. This is the time during a lawsuit when parties seek to obtain information from the other party, or from other individuals who have information regarding the dispute.

What can trigger a subpoena?

Ministries will usually receive a subpoena in one of two situations:

As a party to a lawsuit. Although many discovery requests will be handled by the parties without subpoenas, it’s not uncommon for either party involved in a lawsuit to send a subpoena to obtain information from the other party.

As a witness or record-keeper. Even if the ministry isn’t a party to a lawsuit, it can still receive a subpoena in connection with litigation involving other people or organizations.

Here's a few examples:

• A ministry that has an employee involved in a tax dispute with the IRS may find their payroll records subpoenaed as part of that process.
• A ministry that has a relationship with a couple going through a divorce may find its leaders subpoenaed to give testimony about the facts of the couple’s situation and what would be best for their children.
• A ministry that is located on a busy intersection may find that people associated with it could occasionally be subpoenaed to give testimony about vehicular accidents at the intersection.

We received a subpoena—now what?

A general rule. It’s usually best to respond to a subpoena as requested. A person or entity who refuses to comply with a subpoena—or who simply fails to do so—can be held in contempt of court. For organizations such as churches and ministries, this usually means a fine, but for individuals it could also mean jail time. In addition to complying with a subpoena, ministry employees, staff, and volunteers should avoid destroying any documents related to the request.

Despite this general rule, there are certain times when a ministry may want to fight a subpoena:

• If a ministry can prove that the request is designed to harass the ministry, it may be able to convince a court to “quash” (or withdraw) the order.
• If a ministry can show that complying with the request is likely to take an unreasonable amount of time, resources, or money, the court may either quash the subpoena or require compensation from the party who requested it.
• If a ministry can show that it doesn’t have sufficient time to comply with a subpoena, it may be able to obtain a time extension to respond.

Seek legal advice. If the ministry is a party to a lawsuit, then it likely already has an attorney involved to protect the ministry’s interests. If, however, the ministry or its leaders receive a subpoena because they are a witness or record-keeper, then it’s a good idea to seek advice from a local attorney. This is especially true if the ministry feels that there’s a reason not to comply with the subpoena.

The First Amendment. One area where ministries will generally not be successful in resisting subpoenas is under claims of First Amendment religious protection. Claims that certain information was received in confidence may also not protect the information from disclosure.

• The First Amendment does not protect churches or related ministries from the litigation process, and the mere fact that a ministry is religious in nature is not generally a sufficient reason to avoid complying with a subpoena.
• There is also generally no protection involving information conveyed to lay counselors. If a lay counselor is ordered to testify about discussions conducted during counseling sessions, it will be very difficult to avoid testifying.

The concept of clergy privilege. There is a legal concept known as clergy-penitent privilege, which generally exempts ministers, priests, or other clergy from testifying about confidential communications made to them in their professional capacity.

The rules surrounding this privilege differ in their application from state to state. In most states, the clergy-penitent privilege will not exempt clergy from child abuse reporting responsibilities. Again, a local attorney should be consulted before attempting to raise clergy-penitent privilege as a reason not to respond to a subpoena.

For more information about what to do if your ministry receives a subpoena, please refer to our Subpoena Checklist.