I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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McDaniel’s subpoenas as a Potemkin Village: More evidence that the McDaniel Election Challenge is Just Pretend

A Potemkin Village is a pretend peasant village built for the entertainment of royalty.  It is pretty clear to me that McDaniel’s election challenge is about… entertaining isn’t the right word.  Pleasing.  Pleasing his constituancy.  He’s going to say he tried everything and got beat on unfair injustice and technicalities.  Send money and prepare to continue the good fight.

The subpoenas of the circuit clerks are all that and more.

Rule 45 of the Mississippi Rules of Civil Procedure governs supboenas.  In the last day or so, the McDaniel campaign has faxed subpoenas to 46 circuit clerks demanding they bring documents to Jones County on two or three days notice, as described in my prior post.  I’m concluding that the subpoenas were faxed because that’s how the Circuit Clerk of Lafayette County got her subpoena.  Here’s what Rule 45 says about subpoenas:

(b) Place of Examination. A resident of the State of Mississippi may be required to attend a deposition, production or inspection only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court.

Well, I think we can all assume that, for three subpoenas reported on the internet (Hinds, Lafayette, and Oktibeha), the clerk under subpoana does not live in Jones County, where they were required to deliver the documents.  There has been no order reported stating an “other convenient place,” and, frankly, I’d be shocked if the court entered such an order.  Presumably, an effort to obtain such an order would be met by Cochran’s lawyers with arguments noted in my prior post.

(c) (1) A subpoena may be served by a sheriff, or by his deputy, or by any other person who is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima facie proof of service, or the person served may acknowledge service in writing on the subpoena. Service of the subpoena shall be executed upon the witness personally.

To be blunt, personal service means you hand it to the person.  And someone has to swear that was done.  Sending in a fax:  Not personal service.

 [T]he party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day’s attendance plus mileage allowed by law.

I’m not sure how you fax a check for the witness fee.  I’ve always handed it over with the subpoena (well, had my process server hand it over much of the time, and sometimes handed it myself).  Maybe I’m not creative enough to see other ways of doing it.

By this point, I think it could be clear that someone receiving a document subpoena to go to a county some miles distant, with no personal service and no witness fee, can pretty much say, “Oh, that’s not a subpoena, it’s one of those spam faxes, like the ones offering us a Bahamas cruise on a discount.  We don’t have to do anything about that,” and toss it in the circular file.

(2) Proof of service shall be made by filing with the clerk of the court from which the subpoena was issued a statement, certified by the person who made the service, setting forth the date and manner of service, the county in which it was served, the names of the persons served, and the name, address and telephone number of the person making the service.

Right.

(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or to permit inspection of premises need not appear in person at the place of production or inspection unless commanded by the subpoena to appear for deposition, hearing or trial. Unless for good cause shown the court shortens the time, a subpoena for production or inspection shall allow not less than ten days for the person upon whom it is served to comply with the subpoena.

I think we would have all heard reports of the throw-down that would have occurred if there was an attempt by McDaniel to shorten the ten day period.  To two days.

(f) Sanctions. On motion of a party or of the person upon whom a subpoena for the production of books, papers, documents, or tangible things is served and upon a showing that the subpoena power is being exercised in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the party or the person upon whom the subpoena is served, the court in which the action is pending shall order that the subpoena be quashed and may enter such further orders as justice may require to curb abuses of the powers granted under this rule. To this end, the court may impose an appropriate sanction.

I’m thinking sanctions here.

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