This is purely academic.

I am following the ExxonMobil and Attorney General Maura Healey lawsuit because it interests me from a purely academic standpoint. Here's a link from the Boston Hearld

Basically, I find it interesting (from a Constitutional 1st, 4th and 5th Amendment perspectives) that a State AG is suing not only a company for what it stated about climate change, but also (conservative) think tanks for what they said as well.

But, this little detail is niggling me:

Can a State AG issue a discovery subpoena without a judge's signature and still be enforced?

From my understanding Healey issued this subpoena to ExxonMobil, but it's without a judge's signature. Why wouldn't EM just tell the State AG to pound sand?

Even if this is a civil case, can any attorney at any time just show up at your door and say "give me documents because we are suing you?"

And if it is civil litigation, do the same rules of discovery apply (as in prosecution is allowed no surprises)?

  • I think the answer is yes, as long as there is statutory authority. The AG / DA does not have open-ended power, but there is for example authority under Chapter 271 section 17b for AG / DA to subpoena electronic records. – user6726 Jun 24 '16 at 22:25
  • It looks like this is a copy of the Exxon "subpoena". It's actually labeled as a "civil investigative demand", and it includes a citation of the Massachusetts law that authorizes the state AG to issue such demands. That's not a power that "any attorney" would have. – Nate Eldredge Jun 24 '16 at 22:48

Subpoenas do not generally require review by a judge before they're issued. In many jurisdictions (including federal), any attorney admitted to practice in a court can, as an officer of the court, issue a subpoena in the name of the court. Massachusetts's rules of civil procedure do not allow that, but they do say that the clerk of court (who can issue subpoenas) must provide a blank, signed subpoena form to any party requesting it.

The reason subpoenas in civil cases don't require a judge to sign off in advance is that there's minimal invasion of privacy. A subpoena means you must provide the evidence; the only thing the other side sees is the evidence. A search warrant means the police go through your things looking for evidence, and in the process find a whole lot that isn't actually evidence. Also, before you provide the evidence, you can go to a judge and try to get the subpoena quashed; in contrast, you don't learn of a search warrant until the police actually execute it. With this administrative subpoena, Exxon could file to quash it in Suffolk County.

In terms of disclosure, neither side in a civil trial may generally have surprises. It's not like a criminal case; there is no prosecution, and the defense has no right to avoid providing evidence that might harm their case. The Fifth Amendment right against self-incrimination is only applicable to something that might incriminate you criminally.

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