A subpoena is a court order used to compel a non-party witness to appear at a trial, hearing, or deposition to testify or produce documents or things. The word comes from the Latin sub poena, meaning “under penalty.” There are penalties for an individual who receives a subpoena and does not respond to its direction.
Subpoenas are instruments which help lawyers to prove a case. They may be used to compel witnesses to testify and provide evidence in order to prove a client’s innocence (or lack thereof).
When a subpoena is issued to you, it should give the date, time and location where you are supposed to appear, if you are supposed to appear as a witness (as opposed to produce documents). It should also specify which party to the case you are meant to appear as a witness for.
What are the Different Types of Subpoenas?
There are two types of subpoenas: a subpoena duces tecum, which is a deposition subpoena, and a subpoena testificandum, or trial subpoena.
A deposition subpoena is used to:
- Compel the witness to appear to testify at a deposition;
- Compel a person or records custodian to produce business records for copying; and
- Compel a person to appear at a deposition to testify and produce documents, electronically-stored information, or tangible things.
A trial subpoena is used to:
- Compel the witness to appear to testify at a trial or hearing;
- Compel a person or records custodian to deliver business records for copying for use at trial; and
- Compel a person to appear at a trial or hearing to testify and produce documents, electronically-stored information, or tangible things.
In the case of a trial subpoena, the witness may also appear via telephone call. Whereas for a deposition, the witness must be prepared to give the deposition under oath and would need to be in person.
What are Common Items of Evidence Requested in a Subpoena?
Subpoenas have a broad use and are used in many different legal issues. While they are always a serious order that you must follow, you can request the following through subpoena:
- Computer files/downloaded material;
- DNA or blood samples;
- Medical bills/insurance records;
- Income tax returns;
- Employee records;
- Phone records; and
- Bank records.
Of course, you can also request that they come in for a deposition and to take record of their potential testimony (or see if they may have helpful testimony).
How to Get a Subpoena
The clerk of the court where the case is pending may issue a subpoena on a blank, fillable form, already signed by the court (in the judge’s name) and containing the court seal. Attorneys may issue subpoenas using the mandatory, fillable forms without the clerk’s signature or court seal.
In case of pro se proceedings, where the defendant chooses to defend themselves without aid of a lawyer, the rule is different. The defendant must have the clerk issue the subpoena forms officially.
If the witness lives in another state, you must obtain a subpoena from a court where the witness lives or have a subpoena issued by an attorney licensed to practice law in that state.
Subpoenas may be sent via regular mail, certified mail or email, or read aloud, depending on the jurisdiction where it is served. Special notice and timing procedures may apply in your state if the subpoena seeks the production of personal records of a consumer or employee.
Challenging a Subpoena
Either the nonparty witness who has been subpoenaed, an interested person, or any party to the action, may challenge a subpoena. A subpoena may be challenged because:
- It was not properly served;
- The documents requested are privileged or irrelevant;
- The documents requested are not adequately described;
- It would be unduly burdensome to comply with the subpoena;
- Compliance would violate the witness’s right of privacy; and/or
- Information requested would require violation of witness’s Fifth Amendment right.
To challenge a subpoena, you may:
- File a motion to quash the subpoena;
- Serve written objections to the document request; and/or
- Seek a protective order to protect you from unreasonable demands or the invasion of your privacy.
Enforcing a Subpoena
A subpoena may be enforced by:
- Filing a motion to compel;
- Filing a proceeding for contempt of court; and/or
- Filing a civil action seeking damages for the witness’s failure to comply with the subpoena.
Refusing to comply to a subpoena is a serious issue, and a simple excuse of “I forgot” will not make up for non-compliance. It’s important for those issued with a subpoena to know that there is no avoiding it. You can read more about the consequences below.
What are the Consequences for Not Responding to a Subpoena?
If you do not comply with a subpoena or do not timely respond, you may be subject to penalties, including:
- Monetary sanctions;
- Imprisonment; and/or
- A order requiring payment of attorney’s fees.
Failure to respond to a subpoena is chargeable with the crime of contempt of court. If you are served with a subpoena, and fail to comply, you may be charged with a fine. It is even possible that a warrant may be issued for your arrest, although this is less likely.
It is, basically, inadvisable to simply ignore a subpoena. It is a legally enforceable court order, and failure to respond can have legal consequences.
Do I Need an Attorney If I am Served with a Subpoena?
Subpoenas are serious legal documents, and you should take it seriously if you receive one. Penalties for non-compliance with subpoenas may also be serious. If you have been subpoenaed, or need to subpoena someone, it is highly recommended that you contact a local litigation attorney immediately because they will be able to explain the situation and advise you of your rights and the proper procedures to follow.