Off topic – Enforcing a Subpoena at the MCAD

Posted: March 22, 2013 in Discrimination, Lawsuits

Enforcing a Subpoena at the Massachusetts Commission Against Discrimination (MCAD)

1. If a duly served witness fails to appear, ask the Hearing Officer for an Order appointing you (the attorney) as an agent of the Commission for the limited purpose of enforcing the subpoena. The order should state that the witness failed to appear and is in contempt of the Commission.

2. Draft a Petition to the Superior Court (Suffolk Superior works for the Boston office of the Commission). The Petition should attach the following documents:

a. The original Order from the Hearing Officer.
b. The Subpoena with the Return of Service.
c. A proposed order for the Judge to sign to compel the witness to appear at a certain date or time, and/or to call the counsel to arrange a time to appear and testify.

3. The Petition should include the following legal citations:

a. GL. C. 151B, §3(7) (the Commission’s subpoena power. See Generally, MCAD v. Liberty Mutual Ins. Co., 371 Mass. 186 (1972); Univ. Hosp., Inc. v. MCAD, 396 Mass. 533 (1986).
b. G.L. c. 233, §10 (the Superior Court’s power to enforce an agency subpoena.

4. The Petition should be captioned the same as the Commission’s caption, but excluding the docket number. The Superior Court will use its own docket no. The top of the document and the proposed order should have the following: “Commonwealth of Massachusetts, Suffolk Superior Court.”

5. File the Petition with the docket clerk. You may have to explain that this is not a normal civil action, and that you are only seeking to enforce an agency subpoena. Explain that as an agent of the Commission, there is no filing fee. You will have to fill out a simple cover civil cover sheet. Ask to be heard immediately, as there is an ongoing public hearing at the Commission.

6. After the docket clerks enter the matter in the computer system, they will give you the original petition and send you to a specific courtroom. If the judge grants your application, she will either sign your proposed order or draft the Court’s own order. Return to the docket clerk’s office to make a copy of the order and to return the original Petition for filing and docketing.

7. Serve a copy of the Order and Petition on the recalcitrant witness along with a copy of the Petition. You may want to serve a cover letter explaining what has occurred.

8. If the witness still fails to appear, you can request that the Court declare the witness be placed in contempt of court.

By Adam P. Whitney, Esq.

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