1. 2009 NASAA Attorney/Investigator Training Drafting and Enforcing Subpoenas Martin Cordell, Enforcement Attorney: 360-902-8772, mcordell@dfi.wa.govmcordell@dfi.wa.gov Bennette Zivley, Director, Inspections and Compliance (512) 305-8394 bzivley@ssb.state.tx.usbzivley@ssb.state.tx.us

2. Drafting and Enforcing Subpoenas What is it? Why do you use it? When do you use it? Sample drafts Enforcing a Subpoena

3. Subpoena: A written Order to produce testimony, documents, things or submit to examination Subpoena Duces Tecum –Production of Documents Subpoena To Testify –Testimony Provided Subpoena for documents & testimony

4. Authority for administrative subpoenas comes from Statute. Agency head may delegate authority. Failure to comply may be sanctioned by civil contempt proceedings

5. Subpoena Elements Caption or name of the case Case number – Name of recipient Correct person or entity identified? Who is custodian of the records?

6. Subpoena Elements Place, date and time of production or testimony What is to be produced or provided Time period for requested documents reasonable? Statute of limitations considerations? Generally can only request records that are in existence at the date the subpoena is served.

7. Subpoena Elements Statutory Authority Sanction for disobedience Date of Issuance Issuing Authority Signature

8. Drafting tip: If clear that focus of subpoena is very narrow, use specificity in the description of items requested. If focus not clear, a broad subpoena can help avoid the need to issue a second subpoena.

9. Typical Subpoena Types Issuer Banks Licensee Registrant Phone Records Credit Card Electronic Evidence

10. Used when documents not voluntarily produced –Subpoena Alternatives: Informal Requests for Voluntary Production Examination of Licensees/Registrants Used to gather and preserve evidence –Targets –Third Party Witnesses

11. Subpoena Cover Letters Limitation/Conditions on What and When Requested Items Are Produced –Can assist in clarifying what is needed. Registrant –Can limit unwanted materials. –Can expedite production of the “good stuff.” –“Rolling production" can be arranged so that certain documents are produced first and additional documents can be produced over time or upon request.

12. Issuance and Service Issues Specificity/Overbroad requests –Non-relevant documents Privileges, Protected Materials, Other Return Date Formalities/signature

13. Issuance and Service Issues Proof of Service –Personal –Service by Certified Mail/Regular Mail –Acceptance by recipient’s attorney