In Coleman-Hill v. Governor Mifflin School District, the United States District Court for the Eastern District of Pennsylvania ordered counsel to execute an affidavit of compliance and pay attorneys' fees, in addition to admonishment and partial preclusion of evidence, for the improper use of subpoena power.  2010 WL 4400033 (E.D.Pa. 2010).

Plaintiff alleged racial discrimination against a former employer/school district.  During a deposition, counsel for the Plaintiff learned that the deponent, a school district director of technology, disliked a certain school district official, believing her to be racist.  Following the deposition the attorney submitted a subpoena to the deponent, an employee of the defendant, without giving the school district notice in advance.  Furthermore, the subpoena failed to specify a time and place for producing documents.  The school district objected, but by that time the deponent had fully complied with the request, turning over emails of the official obtained through her access to all electronic documents, some of which were privileged. The school district moved to preclude the production and sanction the attorney. 

As a threshold matter, the Court found that the attorney failed to give the school district notice of the subpoena as it was mailed simultaneously to the deponent.  Furthermore, it called for production "at your earliest convenience" rather than on a specific date.  The Court found it more troubling that the attorney admitted to regularly serving subpoenas in this manner.  The attorney's only justification was that she felt the Court was without power to resolve such a discovery dispute.  In reviewing sanctions, the Court precluded the introduction of all privileged material, but did not preclude the remaining evidence.  The Court did so without prejudice, noting that if more prejudicial reasons for precluding evidence arise, the school district may revisit the argument.  In order to rectify concerns over exactly what was reproduced, the Court ordered a duplicate search to be conducted and the attorney to execute an affidavit stating that such documents were the only ones produced.  Finally, the Court ordered the attorney to personally pay fees associated with the sanctions motion and admonished the attorney from using subpoenas to obtain documents from adversaries. 

For a copy of the opinion, click here.