How to Obtain a Subpoena . . . or Results Equivalent to One

You want legal evidence – such as a photo, a text message, a utility log or a surveillance video -- that is in the hands of some other person.* A subpoena might be a legal way to get that evidence.

But to reach your goal, you may have many alternatives. You are wise to consider alternatives, possibly with the advice of legal counsel. Creative, analytical thinking may be more effective than you expect.

The proliferation of digital devices, and the networking of computers, give rise to a cornucopia of data and evidence about any given event:

  • burglary
  • traffic accident
  • breach of contract
  • sale of property
  • extramarital affair
  • bribery
  • act of good Samaritan

This expanding cornucopia may be richer and more detailed than you imagine. Simply put, there is always more data, always more evidence.

A Simple Letter Might Work

Traditionally a subpoena uses demanding, adversarial language to request information. But that type of language can be counterproductive and can make people cautious and defensive.

One option might be just to write a polite letter requesting the evidence . . . or information about the evidence. For example, the sheriff in Howard County, Indiana, used a polite letter to get information about a fugitive from the operator of the online game World of Warcraft. The letter was not a legally enforceable order. It was an explanation for why the sheriff needed the information about a particular WoW user. The WoW operator responded with a letter providing details about the geographic location of the fugitive in question.

You, the reader may not be a sheriff or a government officer. However, if you have a good justification you may be able to persuade an authority to write a letter on your behalf. That authority might be your local sheriff. Or it might be a politician, such as your state representative in your state legislature.

Although large Internet Service Providers like Facebook can be uncooperative and bureaucratic with requests for information, smaller service providers may be different. For instance, today many mobile apps are operated by small companies. A sympathetic appeal to them for help can sometimes work.

Appeal to a Foreign Official

Surprisingly, the person who might issue a letter on your behalf (if not an official order or demand) is a foreign government official. The Internet has changed the way many government officials view their responsibilities. Legal jurisdiction is not perceived to be as territorial as it once was. For instance the Canadian Privacy Commission is known for taking action against data brokers located outside of Canada . . . when they are handling data about Canadian citizens incorrectly. Thus a US citizen might be able to get help from a Canadian official if the US citizen can show a Canadian connection to the problem.

Subpoena By Way of Bankruptcy

A legal process that enables issuance of a subpoena may not be pleasant. Example: Douglas Himmelfarb has long believed he owns a valuable painting by famous artist Mark Rothko. He has been working for years to prove the painting's authenticity.

15 years ago Himmelfarb learned that Rothko’s family may possess a photograph that would lend credence to the claim of authenticity. Himmelfarb could not persuade the family to release a copy of the photograph.

Then, unfortunately, Himmelfarb went into bankruptcy. An interesting by-product of bankruptcy proceedings is legal power to issue subpoenas for the purpose of ascertaining the value of assets, such as this painting. A bankruptcy subpoena at long last forced the Rothko family to release a copy of the photograph to the court (though the family’s lawyer included with it a written warning that it should not be assigned undue weight in evaluating whether the painting is authentic). “Is This Rothko Real?” Wall Street Journal, April 25, 2014.

How to Write a Subpoena

Please refer to my earlier blog post on how to write a subpoena for computer records. It contains numerous suggestions on how to obtain a subpoena, such as through a police investigation or proceedings in small claims court.

Analyze Your Interest and Your Public Appeal

When you want information from another person, think carefully about why you want it and why you are entitled to help. It may actually be that you have a property interest in the information, or a moral right to it because it affects your safety or privacy or it belonged to deceased relative.

A well-articulated statement of your interest may go farther than you expect. Companies and institutions are sensitive to public perception. A well-formulated campaign on Twitter, on Kickstarter (a crowfunded public petition) and/or on a blog can persuade a larger organization that it should, in the interest of its community, cooperate with a fact-gathering effort.

For example: Facebook released a one-minute "Look Back Video," composed of posts by a deceased user, after the user's father posted a compelling plea on Youtube. (The father, John Berlin, could not access his son's account.)

You Never Know What the Owner of Information Might Do.

The owner may decide, for example, to reveal the information to a neutral third party, who can assess it and report to the public.  It may reveal some information, with sensitive parts redacted. It may decide to reveal only meta data about the information, such as
digital record-keeper
Internet of Things

  • when the information was collected, 
  • how it was collected (smart grid meter? surveillance microphone? navigation system on-board a moving vehicle),
  • what format it exists in (spreadsheet? mp3? video?),
  • whether it has been deleted 
  • and so on.

The information owner very possibly does not even realize what evidence it possesses or the significance of the evidence!

When a firm or a responsible person is faced with a public request for help that appeals to the sympathies of popular opinion, surprising things can happen. You might point out that generosity on the part of the other party might lead to positive publicity and a positive public image.

A similar public appeal might nudge a government entity – like a state attorney general, a school board or a county commission – to open an investigation that would cause a subpoena to be issued. It might cause a public hearing to be scheduled, which could require a party holding information to appear and explain the status of the information and explain why the information is being withheld.

It might cause a local TV station to broadcast a news report.

Ask the Public for Help

Interested members of the public will tell you secrets you don’t know. They might for instance explain to you that the information you seek is backed up in a place you can access.

I recently helped a client who believed certain government employees were harassing him. We blogged about the harassment. This publicity caught the attention of allies, who gave us tips on how to get more information.


*Footnote: A dramatic example of third-party evidence is a surveillance video that surprised Los Angeles prosecutors in a criminal drug trial against Guillermo Alarcon, Jr. Unbeknownst to police officers a camera on an apartment building recorded their arrest of Alarcon. Management at the building was sympathetic to Alarcon and gave the video to his defense lawyer, without telling police. Then at trial Alarcon's defense lawyer produced the video, Perry Mason-style, after the police officers delivered sworn testimony that was inconsistent with the video.  The charges against Alarcon were dismissed. The police officers were convicted of perjury.

Related: Retain Licensed Professional to Follow Online Footprints

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