Subpoena Process: Business Valuation in Divorce
In divorces with business valuations, why issue formal discovery (interrogatories and requests for production of documents) and subpoenas? Is this not duplicative? Not if the judge later says you should have issued a subpoena to the business for the records.
For CPE credit to view this presentation and others from this conference, click here: 2023 FORENSIC & VALUATION SERVICES CONFERENCE BUNDLE.
How Subpoenas Actually Work
Disclaimer: This discussion is “in general” for a forensic accounting or business valuation context and does not cover all of the “in’s and out’s” of time deadlines, etc.
The procedure for subpoena practice is controlled by TRCP 45. Read and review the applicable rules before issuing any subpoena. They do change over time. Also, read Tennessee Civil Procedure 4th Edition Kindle Edition, Robert Banks, Jr. and June F. Entman, Authors.
a. In general, four types of subpoenas:
i. Subpoena for Attendance at Hearing or Trial
ii. Subpoena for Production of Documentary Evidence
iii. Subpoena for Inspection of Premises
iv. Subpoena for Deposition Testimony
b. Draft – start with forms
i. Assemble form from court clerk
ii. Documents needed depends on purpose
iii. SDT w/ production in lieu of appearance requires Affidavit of Authenticity and other requirements – see Example
iv. Letter giving contact person from attorney’s office – see Example
v. Affidavit of authenticity – see Example
vi. Notice to Take Deposition – see Example
c. Serve – Harder than you think
i. Know name of exact legal entity – check paystub
1. DBA’s can be a pain
ii. Legal department? call them and be nice
iii. Check Secretary of State for agent for service of process
iv. In person with process server – member of management
v. Calendar date due
d. Confirm receipt
i. Touch base with subpoena recipient
ii. Confirm receipt, get contact info at recipient
e. Follow up
i. At least one friendly reminder
ii. Ask for status update
f. Enforce – motion to compel subpoena compliance
i. Trick: how to explain to judge SOP
ii. Seek legal fees
iii. Make recipient a third-party defendant?
g. Read Tenn. Rule of Civil Procedure 45
i. It’s a challenge
Hidden Assets & Enhanced Financial Investigation: What “A List” Attorneys Know about Discovery Others Don’t. This presentation is for business valuation and forensic accounting expert witnesses.
Mason’s “Hidden Assets” presentation discusses: Experts must learn the legal process. When should experts stick their nose in? Why there is no line to worry about crossing. How subpoenas actually work. How experts can help with subpoenas. Why the subpoena process is not more frequently used and quick enough. Experiences that can expedite and move financial discovery forward. Why attorneys do things at the last minute. Why attorneys wait too late to hire the financial expert.
This video is an excerpt from Miles Mason, Sr., JD, CPA’s presentation at the 2023 Tennessee Society of CPA’s Forensic and Valuation Services Conference, Oct. 24, 2023, in Brentwood, Tennessee.
To learn more about divorce and forensic accounting, buy Mason’s The Forensic Accounting Deskbook published by the ABA Family Law Section. Forensic accounting can help family lawyers win cases while at the same time their clients are able to keep money which might otherwise be taken from them by the difficult and confusing divorce process. This updated edition of one the ABA’s most popular resources explains the practice of forensic accounting and business valuation and how to apply it in family law cases.
