Served with a Subpoena: What Real Estate Professionals Need to Know

BY American Land Title Association

Getting served with a subpoena can be an intimidating experience—especially for professionals in the title or settlement services space who may not deal with litigation regularly. But understanding what a subpoena is, what it means and how to respond properly can protect you, your business and your clients.

What Is a Subpoena?

A subpoena is a formal legal request for testimony, documents or both. It can be issued by a court, a government agency or even an attorney acting as an officer of the court.

“Subpoenas are part of the discovery process,” said Monica Gilroy, managing member of The Gilroy Firm. “They’re used to gather facts—especially from third parties like title agents, closing attorneys or real estate professionals. Ignoring a subpoena isn’t just risky—it can result in fines, court sanctions or even contempt charges.”

Why You Might Be Subpoenaed

In the real estate industry, subpoenas typically come from civil, criminal or regulatory cases. They can be issued by federal and state courts, state boards such as real estate departments or federal departments. Common scenarios include:

• Divorces involving property disputes
• Title litigation
• Foreclosure or fraud cases where the transaction is being scrutinized
• Criminal investigations into financial crimes or money laundering
• Real estate commission complaints involving agents or brokers
• IRS or government inquiries about a transaction or asset
• Creditor’s rights disputes

Gilroy noted that many title professionals are subpoenaed not because they did anything wrong, but because they were a party to a transaction that is now under scrutiny.

Types of Subpoenas

The primary types of subpoenas include:

• Subpoena ad testificandum: Requires a person to testify, often at a deposition or court hearing.
• Subpoena duces tecum: Requires the production of documents or records, such as a closing file.
• Deposition/Grand Jury: Court order compelling someone to appear before a grand jury to testify or provide documents.

Sometimes, both types are combined, especially in complex litigation or criminal cases.

What to Do If You’re Served

If you receive a subpoena, Gilroy emphasized four golden rules:

• Don’t panic. Subpoenas are routine, not personal.
• Don’t ignore it. Failing to respond can have legal consequences.
• Read it carefully. Understand who it’s from, what they’re asking for, and when your response is due.
• Escalate it. Develop a company-wide policy to immediately notify leadership and/or legal counsel.

“Think about the five W’s—who, what, when, where and why,” Gilroy advised. “That will guide your next steps.”

If in doubt, always consult with your attorney or underwriter—especially if you’re unsure about the context of the request or believe it may involve a title claim or liability risk.

What You Can—and Can’t—Provide

Real estate files often contain confidential and private information, such as Social Security numbers, bank account details, birthdates and addresses, and sensitive internal notes or emails.

In most cases, this information must be redacted before handing over documents. A black Sharpie or digital redaction tool should be used to mask identifying information while preserving the integrity of the record.

Gilroy shared a best practice, “Never blindly produce your entire file. Always scrub it. Always think: is this private, or is it privileged?”

In attorney states, communications may also be protected under attorney-client privilege, which can limit what must be shared. Always verify whether the person requesting the file is entitled to view those records.

Common Missteps to Avoid

Gilroy also warns against these frequent mistakes:

• Unprofessional communication in emails or notes that may later be exposed in court
• Storing HR or operational notes in closing files
• Sharing full copies of checks without redaction
• Posting transaction-related content on social media without consent

She recommended teams regularly review what’s kept in a closing file and train staff to keep communications professional—especially those that could become part of legal records.

Tips and Takeaways

Here’s a quick summary of Gilroy’s practical tips:

• Create a subpoena response policy. Ensure staff know who to contact and what steps to take.
• Redact sensitive data. Socials, banking info, and addresses should be protected.
• Know your client and obligations. Especially in attorney states, clarify who your client is and whether privilege applies.
• Train your staff. Use this webinar as a lunch-and-learn or onboarding tool.
• Keep documentation. Save copies of what you provide and when—both redacted and unredacted.
• Ask questions. Don’t hesitate to contact the issuing party for clarification.

“Don’t be an ostrich,” Gilroy says. “Sticking your head in the sand won’t make it go away. Being served with a subpoena may feel stressful, but with the right process and mindset, it doesn’t have to be. Preparation, policy and professionalism are your best defense.”

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American Land Title Association – direct link to article
Contact ALTA at 202-296-3671 or communications@alta.org