The
Duty of A Nevada Record
Holder to Answer A Subpoena
Several
rules and statutes are applicable on the issue of the duty of a holder
of records to produce them pursuant to a subpoena. Nevada Rules of Civil
Procedure (NRCP) Rule 45 concerns subpoenas. It reads, in pertinent
part:
(a) For
attendance of witnesses; forms; issuance. Every subpoena shall be issued
by the clerk or justice under the seal of the court, shall state the
name of the court and the title of the action[.] . . The clerk or justice
shall issue a subpoena, or a subpoena for the production of documentary
evidence, signed and sealed but otherwise in blank, to a party requesting
it, who shall fill it in before service.
(b) For
production of documentary evidence. A subpoena may also command the
person to whom it is directed to produce the books, papers, documents,
or tangible things designated therein[.]
(f) Failure
by any person without adequate excuse to obey a subpoena served upon
him may be deemed a contempt of the court from which the subpoena issued.
Thus, all
subpoenas served in Nevada must issue from a court, and can mandate
that one who holds records to produce them, with a contempt of court
charge waiting for one who fails to obey the court order. NRCP Rule
45 is backed up by state statutes. NRS 22.010 reads, in pertinent part
(emphasis added):
Acts or
omissions constituting contempts.
The following acts or omissions shall be deemed contempts:
4. Disobedience
of a subpoena duly served[.]
This law
makes it clear that the failure to obey a subpoena shall be punished
for contempt. The law leaves no room for discretion.
The punishment
for contempt is somewhat strict, and is spelled out in NRS 22.100:
Penalty
for contempt.
Upon the
answer and evidence taken, the court or judge or jury, as the case may
be, shall determine whether the person proceeded against is guilty of
the contempt charged; and if it be found that he is guilty of the contempt,
a fine may be imposed on him not exceeding $500, or he may be imprisoned
not exceeding 25 days, or both, but no imprisonment shall exceed 25
days except as provided in NRS 22.110.
Thus, if
one receives a contempt conviction for failing to obey a subpoena to
produce records, he can receive a $500 fine and 25 days in jail. Furthermore,
as NRS 22.110 indicates, one can receive more than 25 days if he falls
under the exception of NRS 22.110. This latter statute allows one to
be imprisoned indefinitely, if "the contempt consists of the omission
to perform an act which is yet in the power of tile person to perform[.]"
NRS 22.110(1). Thus, if one has possession of records and refuses to
produce them in the face of a duly served subpoena (and has no reason,
such as an attorney client privilege, to justify the refusal), and it
remains in his power to produce the records, he can be jailed for as
long as it takes him to obey the court.
One other
statute comes into play. If a person holding records was to destroy
or conceal them, with the intent to delay or hinder the administration
of law, or to prevent their production at any time, that person is guilty
of a gross misdemeanor. NRS 199.220.
Given all
of the above, if a person holding un-privileged records is duly served
with a subpoena, the records should be turned over. Failure to do so
could well be punished as a contempt of court.
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are welcome to call our office directly for a FREE consultation at (888)
466-7566.
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