A subpoena duces tecum is a formal legal document instructing the recipient to produce certain identified documents, computer files, or other physical items.
Virginia Code § 16.1-89. Subpoena duces tecum; attorney-issued subpoena duces tecum.
A judge or clerk of a district court may issue a subpoena duces tecum pursuant to the terms of Rule 4:9A of the Rules of the Supreme Court of Virginia except that such subpoena may be directed to a party to the case as well as to a person who is not a party.
Typically, a party to criminal or civil litigation serves this type of subpoena on a non-party in order to identify information helpful to the litigant’s case. There are various other types of subpoenas, such as witness subpoenas, that are not discussed here.
Running a business is difficult and time consuming even in the best of times, so receiving a subpoena can understandably cause stress and confusion to a business’s officers and employees. This post discusses a few of the basic issues associated with a subpoena duces tecum. This post is not exhaustive, however, so always contact your attorney immediately upon receiving a subpoena.
First, review the subpoena carefully to determine what is requested, who requested it, and the deadline to respond. Regardless of how you plan to respond, immediately issue a litigation hold to relevant employees to ensure that the requested documents or materials are not destroyed. Though it sounds like common sense, do not simply disregard the subpoena or put it at the bottom of your to-do list. Ignoring a subpoena can result in contempt of court and monetary sanctions.
Second, consider how to respond. Just as a business should not ignore a subpoena, nor should it automatically comply without question. Under certain circumstances a business should object to a subpoena. There are both procedural and substantive potential objections. Some procedural bases for objections include improper service, service after the discovery deadline, and unreasonable response time. Possible substantive grounds for objections may include:Relevancy:Information requested should be relevant to the subject matter of the underlying litigation and reasonably calculated to lead to the discovery of admissible evidence.
Undue burden and expense: Compliance with a subpoena would cause an undue burden or expense to the producing party.
Lack of possession, custody, or control: The responding party does not possess, actually or constructively, the requesting documents, nor are the documents within its custody or control.
Trade secrets and confidential business information: If a subpoena seeks documents that contain sensitive business information the business can object. If the requesting party demonstrates a substantial need, however, then production of such information may ultimately be required under the limits of a protective order.
Confidential personnel information: If an individual’s personal confidential information is contained in a requested document, the business should immediately notify such person of the request. The business may be able to object, or, the person whose information is to be produced may have to object. Notably, certain statutory requirements apply when an individual’s medical records are requested
Privileges: In addition to the well-known attorney-client privilege, there are other privileges that may render a subpoena objectionable. For example, health care records made in connection with quality or peer review matters carry a special privilege.
Written objections must be served on the requesting party or attorney within a certain period of time after service. Failure to object within such timeframe may result in waiver of any objections. After serving timely written objections, the requesting party may move the court for an order to compel production. A court will not issue an order to compel unless the moving party has first made or attempted to make a good faith effort to resolve the matter with the other party. After a good faith effort at resolution by the parties, the business also has the option to move the court for a protective order to limit production. It should be noted that when a business makes written objections to a subpoena, it can still comply to the requests for which there are no objections, if there are any.
Motion to Quash or Modify
A business may also decide to make a motion to quash or modify the subpoena based on the same grounds listed above. A motion to quash or modify must be timely and it also requires that the parties first confer or attempt to confer in good faith to resolve their differences. Upon a motion to quash, the court may grant, deny, or modify a subpoena.
Finally, there are many considerations and pitfalls involved in responding to a subpoena duces tecum. Small businesses served with a subpoena should conduct a step-by-step analysis of the subpoena from both a procedural and a substantive perspective. An attorney could be invaluable to this process and should be consulted immediately to help protect your business.
If your business has any questions about serving or receiving a Virginia subpoena duces tecum, contact our office.
Driving Without a License in Virginia, Va. Code § 46.2-300
According to Virginia Code § 46.2-300, it is against the law for any person in Virginia to drive any motor vehicle on any highway in the Commonwealth until such person has applied for a driver’s license, passed the examination, and obtained a valid driver’s license.
• Driving without a license in Virginia is a class 2 misdemeanor. A class 2 misdemeanor holds a punishment of up to $1,000 in fines, up to 6 months of loss of license, and up to 6 months in jail.
• A second or subsequent violation of this section is a class 1 misdemeanor. A class 1 misdemeanor holds a punishment of up to $2,500 in fines, up to 12 months of loss of license, and up to twelve months in jail.
Driving on a Suspended License, Va. Code § 46.2-301(b)
According to Virginia Code § 46.2-304 and § 46.2-357, it is against the law for any person to drive whose driver’s license, learner’s permit, or privilege to drive a motor vehicle has been suspended or revoked.
Penalties for driving on a suspended license is:
• It is a class 1 misdemeanor, which holds a punishment of jail up to twelve months and a fine of up to $2,500.
• A conviction under this statute can also result in license suspension for the period for which it was originally suspended.
• If, however, this is your third conviction over a period of 10 years then there is a mandatory minimum jail time of 10 days.
One of the biggest defenses to driving on a suspended license is lack of knowledge that it was suspended. The Commonwealth has to prove that you knowingly were driving on a suspended license. They have to prove that you had notice of your license suspension.
An attorney will explore this defense along with other possibilities and may be able to negotiate a lesser charge or even get your charge dismissed. If you have been charged with driving without or on a suspended license, consult with an attorney to discuss your options.
We are pleased to announce that the firm’s partner Kirk Sripinyo has accepted a new job at the U.S. Department of Health and Human Services. The firm has benefited from and grown during Kirk’s tenure at the Law Office of Moore and Sripinyo, PLLC, so while we are excited for this new opportunity for Kirk, we are sad to see him leave the firm.
With this change, the Law Office name is reverting back to its prior name of Law Office of Samuel C. Moore, PLLC. The attorneys and staff remain committed to upholding the firm’s highest standards of representation and client advocacy across Northern Virginia, Washington, D.C., and military courts around the world.
Contact us today if you have a civil or criminal litigation need. And join us in congratulating Kirk in his new position.
What is reckless driving in Virginia?
Reckless driving under Virginia statute is someone who drives his/her vehicle “on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person.” VA Code § 46.2-862. To drive recklessly in Virginia is to have a “disregard for the driver of a motor vehicle for the consequences of his act and an indifference to the safety of life, limb, or property.” Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E. 2d 628, 630 (1970).
- Reckless driving is automatically kicked in when you are either going 20 miles per hour or more over the speed limit (ex: going 75 in a 55) or going above 80 miles per hour (regardless of the applicable maximum speed limit).
What are the maximum penalties for reckless driving?
Reckless driving in Virginia is classified as a Class 1 Misdemeanor. A class 1 misdemeanor holds the following maximum punishments:
- Fines: Class one misdemeanors carry a fine of up to $2,500. However, the actual amount you will end up paying will vary depending on your specific situation including but not limited to: your record, your speed, the judge hearing your case, and the local court policy.
- Jail Time: Active jail time is an allowable penalty for Class 1 Misdemeanor and it can be anywhere from 0-12 months. Jail time, much like the fines, will vary depending on your speed, your record, and the local rules. The higher your speed, the more likely jail time becomes.
- Suspended License: Many people who receive reckless driving tickets, also face a great risk of having their license suspended.
- DMV points: A reckless driving charge will give you 6 driving points for a Virginia license.
- Criminal conviction: Virginia does not allow for expungements on criminal conviction. In simple words, if convicted of the misdemeanor, you will not be able to remove it from your record ever. This can have affects in many areas of your life including immigration status, security clearance, and background checks for employment.
Should I pay my ticket/plead guilty?
Paying your ticket admits guilt and you will be convicted of a Class 1 Misdemeanor. You should consult an attorney to see the range of mitigating factors that can help you get a reduced punishment or charge reduction.
Should you get an attorney?
Yes, as mentioned, paying and pleading guilty for reckless driving admits guilt to a Class 1 Misdemeanor. Speaking to an attorney allows you to explore your specific circumstances surrounding your charge including but not limited to possible defenses, weaknesses in your case, reduced punishments, and even a reduced charge given your criminal and driving history.
The Law Office is pleased to welcome a new associate, Farheena Siddiqui. Farheena is a graduate of University of California, Los Angeles. She received her J.D. from The George Washington University Law School, where her internships ranged in different substantive areas of law including healthcare and civil and criminal litigation.
While at George Washington, Farheena participated in the Domestic Violence clinic and interned with Legal Aid, D.C. At the firm, Farheena’s practice is divided between criminal and civil litigation in courts across Northern Virginia.
Contact the office today to discuss any criminal and civil litigation needs or to set up an appointment for a consultation.
A Washington, D.C., jury acquitted the first six protestors who were tried in D.C. Superior Court related to the February 2017 Inauguration Day protests. Each of the defendants faced two criminal misdemeanor counts of engaging in a rioting, and conspiracy to riot, in addition to five criminal felony destruction of property counts.
This was a closely-watched case due to the important criminal and constitutional-law implications related to the charges. And with nearly 200 defendants facing similar charges in trials scheduled throughout 2018, this case was the trial balloon for both the prosecution and defense theories related to the Inauguration Day Protects in D.C.
You can read more about these acquittals here.
The Trump inauguration protest cases have been a year in the making but are finally reaching the trial phase in the D.C. Superior Court. Over 180 defendants face felony and misdemeanor criminal charges for their respective role in inauguration day protests and riots, which led to property damage and mass arrests.
The current wave of defendants are in the midst of the first in many trials that are scheduled to occur over the next nine months. The trials present an interesting look at the intersection between criminal law, the first amendment, and conspiracy liability.
For an interesting look at the current trial, read more here.
The axiom is that the “customer is always right.” But any business knows that this may be a sound policy to press upon employees, but it simply is not always practically or legally possible. Nor can every Virginia or Washington, D.C, business simply afford to accede to every customer demand.
In assessing how to handle a customer complaint–particularly as the complaint moves beyond cold coffee and into the realm of potential litigation–the business must know (1) what are its rights and obligations and (2) what is the practical consequence of the intended response to the customer.
Not every legally permissible option is a good long-term business decision. Growing businesses know all too well the danger of negative online customer comments and reviews, regardless of whether a complaint or review is accurate or whether the business has since remedied the issue. Conversely, not every practical option is legally permissible or wise. For example, the rush to address the customer’s concern may implicate other criminal and civil liability concerns down the road.
When deciding how to handle a customer complaint, a vendor dispute, the threat of a lawsuit, or other challenging Virginia or Washington, D.C., business concerns, contact experienced Virginia legal counsel to discuss all of your business’s options before rushing to action. A brief consultation with counsel to discuss an appropriate response and strategy may save countless hour and dollars down the road if the matter is not handled most effectively at the outset.
To discuss your business’s legal needs with knowledgable Virginia and Washington, D.C., business counsel, contact our office today.
As you grow your Virginia or Washington, D.C., small business into a thriving and successful enterprise, remember to take the time to legally protect what you have built. Like insurance, it is essential that you spend a prudent amount of the time and money to review your operation and ensure that you are properly protecting your assets, employees, vendors, and various other entities with which your business interacts. Your small business’s reputation and financial future may be at stake.
Here are some helpful reminders about many of the legal questions that your small business should consider on an annual basis:
- Entity type: Do you have the optimal Virginia or Washington, D.C., small business entity type? Sometimes the small business entity type that you initially formed–whether due to legal administrative ease or otherwise–is not the best business entity for your current business.
- Review your contracts: What do the contracts that you use on a daily basis actually say? Often closer review shows that your contracts do not say what you have always assumed that they do. This can be very costly when a dispute arises down the road.
- Non-compete agreements: Does your small business need to use non-compete agreements with its employees and contractors? Will the current non-compete agreement that you are using be enforceable? Does it matter?
- Employee legal grievances and lawsuits: Are you protecting your employees and your business from a employment law complaint? Plan ahead; don’t merely react.
- Choosing an attorney: Are you working with an attorney and law firm that serves your business’s needs?
These are just a few of the issues that you should continually review, rethink, and re-address as your small business grows. Contact the office today if you would like to discuss your Virginia or Washington, D.C., small business’s needs with an experienced and knowledgable law firm.
Preparing for your consultation with a litigation attorney
As an experienced Litigation Attorney, I am often asked a question which seems simple but isn’t: “Do I have a case?” Unfortunately, the answer to this is always complex. It is dependent on what happened, how you will prove it, what you want if you win, and whether it’s economically worth it to pursue a lawsuit. People often pick up the phone and start calling attorneys before they have these basic questions answered in their heads. They shouldn’t. Having the answers to these questions will help you explain your side and help the litigation attorney evaluate whether you “have a case.”
1. What happened?
The first thing you need to get clear in your mind is what exactly happened. This is the part that actually is pretty simple. Were you assaulted? Did you pay someone to build a deck and they did a bad job? Were you in a car accident? Whatever it was that happened, try to remember the details and write them down. And don’t just think about the event itself, try and remember what led up to the problem and what occurred after. If you have a written account, you can provide that to any litigation attorney that you consult.
2. How will you prove it?
An experienced litigation attorney knows that the old cliché that there are two sides to every story is true. If you’re considering suing, you need to think about what the other party is going to say as well as your side of the story. Also think about how you’re going to prove your side. Will there be objective evidence or will it be your word against theirs?
I always ask potential clients what evidence there might be to support their claim. Perhaps there are text messages, emails, or cashed checks. Nowadays, it is increasingly common for there to be audio or video recordings. If the dispute is primarily over a contract, then it should be obvious that a copy of the signed contract is a necessity. These things are important because they are objective. If the documents are proven to be real (or “authenticated” in legal terms), then there is little dispute about what they say. And they let a judge or jury come to a conclusion on their own.
If there isn’t objective evidence, then the case is simply your word against theirs. Although this type of case is easy to bring into court–because there is very little evidence to present–it is harder to win.
3. What do you want if you win?
It’s surprising, but people often don’t have an answer when I ask them what they would want if they win their lawsuit. Usually they just say “money.” That’s a given, of course. But the real question is, why do you think you’re entitled to money? Sometimes the answer is obvious. Other times, it isn’t. For example, if you paid a contractor to build a deck for you and they took your money and ran then you’d want the full amount back. But if they built a deck that you weren’t satisfied you might not want a full refund. You might want them to fix the parts you are unsatisfied with.
In some cases, the measure of damages can get murkier. Take an assault and battery case as an example. If someone hit you and you had to go the hospital then they might be responsible for reimbursing you for your medical bills. But are they also required to reimburse you for the pain and suffering that resulted from the assault? Maybe. The amount plaintiffs receive can vary greatly from case to case. Just like the question of whether you win at all, the question of how much you will recover will be based on what you can prove. How will you prove to the judge or jury that you suffered? These are all things that you should think about before consulting with a litigation attorney.
4. Is it worth your time and money to sue?
The final thing you need to think about is whether it is worth your time and money to sue. This is a purely economic question. Litigations costs money and the fees can quickly add up. I tell people quite frankly that if your argument is over a small amount of money, such as anything under $5000.00 then it is almost never worth it to hire an attorney. You should first try to settle the argument with the other party. If you can’t do that, then you can take them to small claims court. In Virginia, small claims court can handle any dispute where the amount of money in issue is less than $5000.00. A helpful pamphlet explaining small claims court procedures can be found here.
If your claim is for an amount greater than $5000.00 then it might be worth it to consider hiring a litigation attorney to handle your case. If you answers these questions for yourself before contacting an attorney, you’ll be well ahead of the game.