Q: How should our ministry respond to a subpoena?

A: It’s usually best to respond as requested. However, there are certain times when a ministry may want to fight 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 most often issued during what’s called the “discovery phase” of litigation, where both sides are gathering evidence.

What can trigger a subpoena?

Ministries will usually find themselves on the receiving end of a subpoena in one of two situations:

As a party to a lawsuit: When a ministry is involved in a lawsuit, it may receive a subpoena 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. In this situation, the ministry might be subpoenaed to provide anything from payroll records in connection with an employee’s tax dispute to testimony about an auto accident that occurred near the church.

What should we do if we receive a subpoena?

Subpoenas are court orders, and it’s usually best to respond 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.

Despite this general rule, there are certain times when a ministry may want to fight a subpoena, such as if the request is designed to harass the ministry, or if it’s likely to take an unreasonable amount of time, resources, or money to respond to the request. 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.

Clergy/penitent privilege: 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.

There’s a legal concept known as “clergy-penitent privilege,” which generally exempts clergy from testifying about confidential communications made to them in their professional capacity. The rules surrounding this privilege differ 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.

Additional Resources

Read the article "How Should Our Ministry Respond to a Subpoena?"
Download our Subpoena Checklist