Louisiana subpoenas: ignore one and the other side's sworn statement becomes fact

Most rules answer non-compliance with contempt or a motion. Louisiana offers something faster against an opponent: state on oath what the documents would have shown, and if they are not produced, that is what the record says.

The facts you swear to are taken as confessed

Article 1354(G):

When the person subpoenaed is an adverse party, the party requesting the subpoena duces tecum may accompany his request with a written request under oath as to what facts he believes the books, papers, documents, electronically stored information, or tangible things will prove, and a copy of such statement shall be attached to the subpoena. If the party subpoenaed fails to comply with the subpoena, the facts set forth in the written statement shall be taken as confessed, and in addition the party subpoenaed shall be subject to the penalties set forth in Article 1357.

Four conditions and one consequence.

The target must be an adverse party, not a stranger to the case.

The statement is under oath, and says what the requester believes the material will prove.

A copy is attached to the subpoena, so the opponent is on notice of exactly what non-compliance will cost.

And on failure to comply, those facts "shall be taken as confessed" — plus the ordinary contempt penalties on top.

For the requesting party this is a drafting exercise worth doing carefully. The statement should be specific enough to be useful if it is deemed admitted, and defensible enough to survive the objection that it overreaches. Vague assertions gain nothing.

For the party served, the instruction is simpler: a subpoena duces tecum from an opponent with a sworn statement stapled to it is not a document to leave in a pile. Either comply or object within the fifteen days below.

Fifteen days to object, with supporting reasons

Article 1354(B):

A person commanded to respond to a subpoena duces tecum may within fifteen days after service of the subpoena or before the time specified for compliance, if such time is less than fifteen days after service, send to the party or attorney designated in the subpoena written objections, with supporting reasons, to any or all of the requests, including objection to the production of electronically stored information in the form or forms requested.

Fifteen days, or the compliance date if sooner, and the objections must carry supporting reasons.

Louisiana does not attach an automatic bar on production to the objection the way many states do. Instead the issuing party's route is stated directly: "If objection is so made, the party serving the subpoena may file a motion to compel compliance with the subpoena and may move for sanctions for failure to reasonably comply."

Note the standard in that last clause — sanctions for failure to comply reasonably, which puts the quality of the response in issue as well as its existence.

The rule has to be printed on the subpoena

Article 1354(H) is one line:

Subpoenas duces tecum shall reproduce in full the provisions of this Article.

Not a summary and not a citation — the whole article, which includes the fifteen-day objection right, the production duties, the electronically stored information provisions, and subsection (G) itself.

That is what makes the taken-as-confessed rule fair in operation. A party served with such a subpoena is holding the text that explains the consequence.

Someone else can answer for you

Article 1354(A) contains a substitution provision that has no counterpart in most states:

If the party or attorney requesting the subpoena does not specify that the named person shall be ordered to appear, the person may designate another person having knowledge of the contents of the books, papers, documents, other things, or electronically stored information, to appear as his representative.

The default runs in the recipient's favor. Unless the subpoena says the named person must appear personally, that person can send someone who knows the records.

The drafting point for the issuing party is the mirror image: if you need this particular custodian, say so expressly on the subpoena.

The same article makes copies the norm: "Except when otherwise required by order of the court, certified copies, extracts, or copies of books, papers, and documents may be produced in obedience to the subpoena duces tecum instead of the originals thereof." Extracts are on that list, so a custodian need not produce a whole file where part answers the command.

Statewide reach, and a sheriff with five days

Article 1352 sets the geographic reach broadly:

A witness, whether a party or not, who resides or is employed in this state may be subpoenaed to attend a trial or hearing wherever held in this state. No subpoena shall issue to compel the attendance of such a witness unless the provisions of R.S. 13:3661 are complied with.

Residence or employment in Louisiana is enough, and the subpoena reaches any trial or hearing in the state — subject to the witness fee statute being satisfied first.

Service normally runs through the sheriff, "in the same manner and with the same effect as a service of and return on a citation," and where a party is the witness, "service of the subpoena may be made by personal service on the witness' attorney of record."

Article 1355(B) supplies the backstop when the sheriff is slow:

Except as otherwise provided by law, when the sheriff has not made service of a subpoena within five days after its receipt or when a return has been made certifying that the sheriff has been unable to make service, any person over the age of majority, not a party and residing within the state, may make service of the subpoena in the same manner as is required by the sheriff.

Five days, and then private service becomes available. Proof is by "a notarized return showing the title of the action and the name of the court issuing it, the date and manner of service, and the name of the person served, signed by the person who made the service."

Re-serving after a continuance: thirty-five days by certified mail

Article 1355.1 deals with the common problem of a trial date moving after witnesses have been served:

the party requesting such reissuance may have the subpoena served in accordance with Article 1355 or may serve the subpoena by mailing a copy of the original subpoena, together with a notice of the new date and time for attendance, to the witness at his dwelling house or usual place of abode, or to a representative of the witness if personal service of the original subpoena was made on such representative. The mailing shall be by registered or certified mail, return receipt requested. The date of mailing shall be not less than thirty-five days prior to the date on which the witness is subpoenaed to appear.

The mail route is available only for a reissued subpoena that was personally served the first time. Three conditions attach: registered or certified mail with return receipt, mailed at least thirty-five days before the new date, and "A copy of the documents mailed to the witness and the signed return receipt shall be filed by the party in the record as proof of service."

And if it comes back: "If the registered or certified mail is unclaimed, service of the subpoena shall be as otherwise provided by law." An unclaimed envelope is not service.

The deposition notice authorizes the subpoena

Article 1356(A):

Proof of service of a notice to take a deposition or of a notice of inspection under Article 1463 constitutes sufficient authorization for issuance by the clerk or judge of the district court wherein the action is pending of subpoenas and subpoenas duces tecum.

No separate application is needed once the notice has been served and proof filed.

Timing for a non-party is stated as a standard rather than a number: subpoenas "compelling the appearance of a witness who is not a party shall be served within a reasonable period of time before the time specified for the deposition."

Burden, inaccessible material, and cost allocation

Article 1354(A) states the duty and the remedy together: "A party or an attorney requesting the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to that subpoena. The court in which the action is pending in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive."

The standard is disjunctive — unreasonable or oppressive — and the court's power is discretionary.

On electronically stored information, Article 1354(F) allows a person to decline production from sources identified as not reasonably accessible, subject to showing that on a motion, and then:

If that showing is made, the court may nonetheless order production from such sources if the requesting party shows good cause. The court may specify conditions, including an allocation of the costs, for the production.

An allocation of the costs is named expressly as one of the conditions available, which is the request a burdened custodian should make.

Contempt, and attachment

Article 1357:

A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena. The court may also order a recalcitrant witness to be attached and brought to court forthwith or on a designated day.

Two remedies, and the second is immediate: attachment and production of the witness "forthwith or on a designated day."

A short checklist

If you are issuing one:

1. Consider the sworn statement when subpoenaing an adverse party — non-compliance makes those facts confessed.
2. Reproduce Article 1354 in full on any subpoena duces tecum.
3. Say so expressly if you need the named person, not a designated representative.
4. Give a non-party a reasonable period before a deposition.
5. After a continuance, mail the reissued subpoena at least 35 days out, by registered or certified mail, and file the receipt.
6. Watch the sheriff's five days; after that you can use a private server.

If you have been served:

1. Object within fifteen days, with supporting reasons, or by the compliance date if that is sooner.
2. Check whether a sworn statement is attached. If it is, ignoring the subpoena concedes its contents.
3. Send a knowledgeable representative if the subpoena does not name you personally.
4. Produce copies or extracts unless the court has ordered originals, and ask for a cost allocation on inaccessible material.

Where these rules live

• La. C.C.P. Art. 1352 — Restrictions on subpoena
• La. C.C.P. Art. 1354 — Subpoena duces tecum
• La. C.C.P. Art. 1355 — Service of subpoena
• La. C.C.P. Art. 1355.1 — Reissuance; service by mail
• La. C.C.P. Art. 1356 — Subpoenas for depositions or inspection
• La. C.C.P. Art. 1357 — Failure to comply with subpoena
• Louisiana motion to compel discovery
• Responding to a Louisiana petition
• Louisiana exceptions

This page explains what the rules say. It isn't legal advice, and the witness fee statute referred to in Article 1352 is not carried on this site.