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If an attorney in the US is being required to produce substantial but selected legal records and documents for a mix of criminal and civil litigations against the attorney, and these documents are stored and archived via an expensive legal document storage service and if they can no longer afford to pay for the service of document search and retrieval (and is in fact already deeply in arrears having failed to make monthly payments), what happens next?

This is a hypothetical scenario only loosely based on current events.

If the only source of the material is the service who is owed so much money already they refuse to provide search and retrieval, a judge might find the defendant in contempt. But if the defendant was still unable to secure funds to bring their account current, a contempt finding doesn't seem to move things forward.

Can the accusing parties (civil) or prosecutors (criminal) then ask for a subpoena to force the host of the archived documents to perform the relevant searches and produce the required documents?

Would it matter if the documents were in one state and the proceedings were in another?

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  • Is there anything that a court can compel you to pay money for without a verdict?
    – Mazura
    Aug 17, 2023 at 1:08
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    Sure - for example, they can require that you file briefs citing an expensive transcript. You have to pay for the transcript and for printing out however many copies of everything you file that the Court is ordering to be filed.
    – WBT
    Aug 17, 2023 at 2:01
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    Is it relevant that the defendant is an attorney in this situation?
    – Barmar
    Aug 17, 2023 at 15:16
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    It does seem very strange that an attorney (or anyone) would store important documents in a place they can't afford to access. And attorneys usually make good money.
    – Barmar
    Aug 17, 2023 at 20:10
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    @RichardWard The two are closely linked: the only legal channel to get the transcript costs a lot of money and the order is compelling the spending of money.
    – WBT
    Aug 20, 2023 at 2:07

2 Answers 2

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As a general rule, failure to comply with a court order is not contempt of court if compliance is impossible. In the unusual scenario you describe, the outcome will depend on the specific legal obligation in question, as well as the opposing party's attitude (eg whether they accept, as a matter of fact, that compliance requires the producing party to pay fees that they cannot afford).

If the obligation to produce documents arose from a subpoena issued in accordance with rule 45 of the Federal Rules of Civil Procedure, subsection (e)(1)(D) would apply:

Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Similarly broad powers to set aside or modify a subpoena which imposes an "undue burden" on the recipient exist under other civil procedure statutes. As you suggest, one way around the problem might be to direct the subpoena to the entity requesting the fee. That entity might then also apply for the subpoena to be set aside unless its costs are paid by the issuing party. Again, the outcome depends on all of the unusual circumstances that led the issuing party to fund litigation against a responding party who, according to the question, cannot afford to pay document storage fees, let alone any damages or costs ordered by the court.

The position is different in criminal litigation against the responding party. Normally documents of the accused would be obtained under search warrant, potentially from a third party, rather than (perhaps impermissibly) expecting the accused to assist the prosecution by complying with a court order to produce documents. Different laws and procedures govern disputes about the proper scope of criminal investigation powers.

These include both state and federal laws, so any connection to multiple states is important and potentially changes the applicable law. The fact that the target of these compulsory powers is a lawyer, however, is probably not that important. The general law of subpoenas would still apply, although a lawyer's documents would commonly be subject to privilege, and a lawyer might also face professional sanction for losing access to their practice records through financial mismanagement.

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  • "a lawyer might also face professional sanction for losing access to their practice records" ... IRS says you have to keep records for seven years or w/e. What's the rule here?
    – Mazura
    Aug 17, 2023 at 1:05
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a mix of criminal and civil litigations against the attorney

I don't think being an attorney really matters. If the actions are against an attorney, they should have their own attorney handling the cases, they shouldn't be handling them pro se.

For the criminal cases, defendants do not have to provide evidence against themselves. The defendant should invoke their right to remain silent. The prosecutors will issue their own subpoenas and search warrants and get the evidence themselves.

For the civil cases, there are remedies if one side fails to produce discovery. As seen in the Alex Jones trial, the party that failed to produce discovery could have adverse inferences made against them. That means the court has found that certain things are true and are not a matter for the jury to decide anymore because the court discovery rules to provide a level playing field for everyone were not followed.

An example was that the plaintiffs claimed that Alex Jones used google analytics to track the popularity of his lies and used it as a way to increase his profits. Jones was ordered to provide his google analytics data but failed to do so. The court then found as an adverse inference that the plaintiff's claims were true. This means the jury would only hear that one side and Jones and his legal team could not argue against it.

In your example it could be that the plaintiffs are arguing that the attorney failed to keep their settlement money separate and comingled it with their funds. If the attorney cannot afford to produce the records requested in discovery that might show this, an inference could be made against them that comingling did happen, and the attorney could be forbidden from arguing in the lawsuit that he did not comingle the funds.

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  • Thanks! Wikipedia's Adverse inference; United States "This rule applies not only to evidence destroyed but also to evidence existing but not produced by the party as well as to evidence under a party's control but not produced... The adverse inference is based upon the presumption that the party who controls the evidence would have produced it, if it had been supportive." In my example the party seems powerless to produce it, which seems contrary to this presumption. Of course running out of cash could be intentional
    – uhoh
    Aug 16, 2023 at 22:28
  • Can a [plaintiff] in the US be required to produce *paywalled documents?* +1. What's next? Leave the country because you're being sued personally instead of under a company umbrella?
    – Mazura
    Aug 17, 2023 at 1:01

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