Subpeona from attorney

[Matt Fellman]

I'm pretty sure I know the answer to this one but I'd rather not have to call an attorney if I don't have to.

In a nutshell, a group of homeowners are suing a builder/developer from houses built in 2003 and my company did 2 inspections when they were new or near new (+/- 8 years ago). So, I get a subpeona from an attorney telling me to hand over the reports. I called them and say no way unless my client contacts me to request another copy.

So, the legal assistant or whomever it was I was talking to basically starts threatening me with dragging me in to a deposition in front of 20 attorneys and requiring me to go before the court and just about every other thing she can think of.

It's very plainly stated in my state SOPs that I can't give a report to anyone but my client.

Is there something here I'm missing that could require me to turn over these reports if it's requested in some formal manner? I'm not at home now and don't have the document they sent but I seem to remember it looks like it came from a court - like a legal case filing or similar. I honestly barely even looked at it since I have no intention of giving them anything unless my client calls me.

fwiw, I asked the attorney why they don't just have my clients call and it sounds like they don't live in the houses anymore. I'm not sure how they even found out we did inspections for them. I'm thinking I need to start deleting reports after 7 years.

[Billy Stephens]

I'm thinking I need to start deleting reports after 7 years.

Wow Matt remember you told me last year you trashed those CD's.

[John Kogel]

A subpeona AFAIK means you could be held in contempt if you don't submit something. In this case, they are demanding your copy, not your client's copy. You are under no obligation to answer questions but you must comply to the demand, because of the subpeona.

[BridgeMan]

You should be jumping at the chance to give a deposition for them.

Just inform them of your current rate, that being $5000 per hour, with a 2 hour minimum. And your preparation, travel and waiting time are currently $1000 an hour, aren't they? With payment in advance, of course. And don't forget the fine print, where your rates are increased by a factor determined by the total number of attorneys present, if there are more than 2 in the room.

Attorneys aren't the only people who can charge handsome fees for their services.

[Matt Fellman]

A subpeona AFAIK means you could be held in contempt if you don't submit something. In this case, they are demanding your copy, not your client's copy. You are under no obligation to answer questions but you must comply to the demand, because of the subpeona.

???

This makes no sense to me..... I can't imagine defending myself to my licensing authority by claiming I didn't distrubute my clients copy but that I gave them my copy. It's not my report. My client paid me for it and I'm under strict, very clear orders from the state to not pass it along to ANYONE.

Why is it just so magical when an attorney asks for it that I must comply? I really don't care about giving to them... I just don't want to be in violation of my state's rules. It's a 5K fine per incident.

[Ted Menelly]

I'm pretty sure I know the answer to this one but I'd rather not have to call an attorney if I don't have to.

In a nutshell, a group of homeowners are suing a builder/developer from houses built in 2003 and my company did 2 inspections when they were new or near new (+/- 8 years ago). So, I get a subpeona from an attorney telling me to hand over the reports. I called them and say no way unless my client contacts me to request another copy.

So, the legal assistant or whomever it was I was talking to basically starts threatening me with dragging me in to a deposition in front of 20 attorneys and requiring me to go before the court and just about every other thing she can think of.

It's very plainly stated in my state SOPs that I can't give a report to anyone but my client.

Is there something here I'm missing that could require me to turn over these reports if it's requested in some formal manner? I'm not at home now and don't have the document they sent but I seem to remember it looks like it came from a court - like a legal case filing or similar. I honestly barely even looked at it since I have no intention of giving them anything unless my client calls me.

fwiw, I asked the attorney why they don't just have my clients call and it sounds like they don't live in the houses anymore. I'm not sure how they even found out we did inspections for them. I'm thinking I need to start deleting reports after 7 years.

8 plus yearsw

Let them threaten away. When I visted you we went through all your outdaated useless files and sent them to the trash and deeted all to gain hard drive storage space.

You don't have copies after 8 years, Oh well. No one can do a thing about it.

[Mike Kleisch]

I agree, it's not your report, and the attorneys can find the former owners and subpoena them for the report. Our State SOP says the same thing that you can not provide the report to anyone without the consent of the client.

You have a right to object to the subpoena and I would think that the agreement you and the client signed would trump the subpoena order to provide the clients report without the clients approval.

You could offer your services, for a fee, to track down your former clients and get the OK. No reason to do it for free.

[Raymond Wand]

The subpeona trumps your contract terms. Hand over the reports.

[Jim Luttrall]

If it is a court order then that would trump your contract in that you could be held in contempt of court.
But unless I missed this on Judge Judy, isn't a subpeona just a formal request from the attorney?
How would that trump anything?
But yeah, after 10 years they are just on a fishing expedition and trying to use your report for purposes that you never intended, I think my record storage would be shorter than 10 years.

[Matt Fellman]

The subpeona trumps your contract terms. Hand over the reports.

I'd be fine accepting this but where does it say this? I called my state contractor's board and they said nope. Don't give it to anyone but your client. Of course, they gave the caviat that they can't give legal advice, blah, blah.

I'll read the subpeona more closely when I get home and I guess I may have to call an attorney.

[Raymond Wand]

Oregon State Bar -What is a Subpoena? (http://www.osbar.org/public/legalinfo/1062_Subpoena.htm)
Rule 45. Subpoena | Federal Rules of Civil Procedure | LII / Legal Information Institute (http://www.law.cornell.edu/rules/frcp/rule_45#rule_45_c_3_A_ii)
Responding to Subpoenas | Digital Media Law Project (http://www.dmlp.org/legal-guide/responding-subpoenas)

[Lon Henderson]

The subpoena probably trumps the contract. Contact your buyers (if you can) and ask if they care. IMHO, this is not a bridge to die on. I think you should be able to get some quick and free legal advice somewhere for this.

I like Bridgeman's advise and I would try to charge them for the time you spend.....send them a contract. I had someone contact me many years later for a copy of my inspection, and I told them that it was long gone. Taxes are for seven years but for many other things, you only have to keep a record of for three years.

[Jerry Peck]

"isn't a subpeona just a formal request from the attorney"

Yes ... with the court's power behind it. Do not treat it lightly.

Yes, they can be contested if one so chooses, there are also other good points raised in the replies above.

You need to comply with the subpoena, however, most states allow for covering reasonable costs to comply with the subpoena ... so, as suggested by others;

Respond to the attorney who sent the subpoena with the following specific information:
- 1) how many copies of each report they are requesting
- 2) which specific reports, by address, they would like copies of
- 3) include an invoice listing your charges for your reasonable costs for complying with their request
- - Cost for court time, including deposition time:
- - - $250.00 per hour, 1/2 day* minimum / 1/2 day of 4 hours minimum @ $250.00 per hour = $1000.00
- - Cost for preparation time, such as research, making copies of reports, any and all other time spent preparing for and responding to subpoena or for court testimony,
- - - $250.00 per hour, 1/2 day* minimum / 1/2 day of 4 hours minimum @ $250.00 per hour = $1000.00
- - *1/2 day equals 4 hours minimum charge between 8:00 am and 12:00 noon, or, 4 hours minimum charge between 1:00 pm and 5:00 pm; 12:00 noon to 1:00 pm is lunch; any time starting before 12:00 noon and finishing after 12:00 noon equals two 1/2 days or 8 hours minimum charge; when time spent is greater than 4 hours per half day, additional time will be charged at the stated hourly rate with any portion of an hour equaling a minimum 1 hour additional charge
- - Current amount preparation time for responding to subpoena:
- - - $1000.00 (1/2 day of 4 hours minimum @ $250.00 per hour)
- - - $3000.00 minimum estimated additional costs to comply with their request, cost may be higher or lower based on the time to comply with their specific information regarding how many inspection reports and how many copies of each they are requesting
- - Total due by return mail:
- - - $4000.00 unspent funds will be kept as a retainer to apply toward any additional requests, if any' unspent funds will be returned upon receipt of letter relieving you of any further requests and obligations

You are complying with the subpoena to the best of your ability as the attorneys have not yet provided you with sufficient detailed information (i.e., addresses and how many copies) about which inspections they want you to provide copies of to them.

Then, when they give you those addresses, if they follow through, and ask for multiple copies of each report, provide the reports in electronic pdf files, and if they request 3 copies of each report, send them 3 copies of the pdf file.

[Jerry Weaver]

Matt,
Call Dave McLean or someone else from OREIA. We had a great attorney ( I am drawing a blank on his name-- it's a b***h getting old !), that is our go-to guy. I called him several times over the years and got factual info.
Susan and I are still in Palm Springs at the moment , but will head back to Portland next week. It hit 108 today!! jeesh!

Jerry Weaver ( Retired)
Elite Home Inspections

Update: Susan found him : Nick Baldwin-Sayer 503-219-3850. Please tell Nick I said Hello.

[Matt Fellman]

Matt,
Call Dave McLean or someone else from OREIA. We had a great attorney ( I am drawing a blank on his name-- it's a b***h getting old !), that is our go-to guy. I called him several times over the years and got factual info.
Susan and I are still in Palm Springs at the moment , but will head back to Portland next week. It hit 108 today!! jeesh!

Jerry Weaver ( Retired)
Elite Home Inspections

Update: Susan found him : Nick Baldwin-Sayer 503-219-3850. Please tell Nick I said Hello.

Thanks Jerry! I actually got it worked out but will hang onto Nick's name&number for the future (hopefully won't need it :) )

BTW... great to hear from you and I'm glad you're somewhere warm and enjoying retirement. It's been so busy lately I'm wishing I was retired :)

[Matt Fellman]

A little upate to the saga..... I called the attorney back today and managed to get out of them that they are actually working for the "other side" from my client (homeowner) but managed to get the other attorney's info. Called them and got written consent from both previous clients to release the reports to their counsel and it will likely get turned over to the ones initially beating me over the head for the reports.

In the end it probably wouldn't have caused me any problems but I'm glad I didn't just hand the stuff over to the first person that called. I'm also glad I could help an attorney bill out a few extra hours and make some more money from me hassling them. I sometimes feel sorry for them and like to help make sure all the BMW payments and plastic surgery gets paid for :)

Thanks everyone for the advice and info.