What a Subpoena Is
A subpoena is a written order that compels a person to do something in connection with a legal case. It can require the person to appear and testify, to produce documents or other evidence, or both. The word comes from Latin and means, roughly, under penalty. A subpoena is backed by the court's authority, and failing to comply can lead to penalties.
Subpoenas are used in civil and criminal cases, in administrative proceedings, and in some legislative investigations. They are a basic tool for gathering evidence and testimony.
The Two Main Types
- Subpoena ad testificandum. This requires a person to appear and give testimony, either at a trial, a hearing, or a deposition.
- Subpoena duces tecum. This requires a person to produce documents, records, or other tangible things. It can be combined with a command to testify.
Some courts also issue a subpoena for inspection of a location or for a deposition. The label describes what is demanded, not who issues it.
Who Can Issue a Subpoena
Under Federal Rule of Civil Procedure 45, the clerk of court issues a subpoena, and in many cases an attorney may also issue one. The rule is available through the federal courts at uscourts.gov and through Cornell's Legal Information Institute at law.cornell.edu. State rules of civil and criminal procedure contain similar provisions, and each state publishes its own rules through its courts or legislature.
A subpoena can reach a person who is not a party to the case. That is one of its defining features. A party can be required to testify or produce evidence through discovery rules, while a nonparty is usually reached through a subpoena.
Subpoena vs Other Court Orders
| Order | What it does | Issued by |
|---|---|---|
| Subpoena | Compels testimony or production of evidence | Court clerk or attorney |
| Court order | Any directive of the court | Judge |
| Search warrant | Authorizes a search and seizure, based on probable cause | Judge or magistrate |
| Summons | Notifies a defendant that a case has been filed | Court clerk |
| Grand jury subpoena | Compels testimony or records in a criminal investigation | Grand jury or prosecutor |
A subpoena does not by itself authorize a search. A warrant, supported by probable cause, is generally required for law enforcement to search a place or seize property.
What a Valid Subpoena Should Contain
Although the details vary by jurisdiction, a valid subpoena typically identifies the court, the case caption and number, the person or entity commanded, the date, time, and place for compliance, and the items or testimony demanded. It should also state the method for recording testimony and include the text of the rules about the recipient's duties and objections.
If a subpoena is defective, the person served may be able to object or move to quash rather than comply. Keep the document and note how and when it was delivered.
How to Respond to a Subpoena
Read the subpoena carefully and note every deadline. Then decide which path applies:
- Comply. Produce the requested documents by the deadline, or appear at the scheduled time. If production is burdensome, you may be able to negotiate a rolling production or a narrower scope.
- Object. A recipient may serve written objections, which can shift the burden to the issuing party to seek a court order.
- Move to quash or modify. A motion asks the court to cancel or narrow the subpoena. Common grounds include relevance, privilege, undue burden, and geographic limits.
Do not ignore a subpoena simply because it is inconvenient or because you think it is improper. Ignoring it can lead to a contempt finding and sanctions. At the same time, you generally do not have to produce privileged material, and you can assert the privilege instead of turning it over.
Grounds to Quash or Modify
- Relevance. The request must seek information relevant to the case.
- Undue burden. A request that is overly broad or expensive to answer may be narrowed.
- Privilege. Attorney-client communications, medical records, and other protected material may be withheld or require a protective order.
- Geographic limits. Rules cap how far a person can be required to travel, and a court may quash a subpoena that exceeds those limits.
- Improper service or notice. If the subpoena was not properly served or does not give reasonable time to comply, a court may quash it.
Subpoenas in Criminal Cases
In criminal matters, grand jury subpoenas are common. A federal grand jury can compel testimony and records as part of an investigation, and the person subpoenaed may have limited information about the broader case. A witness who invokes the Fifth Amendment privilege against self-incrimination may be required to appear and assert the privilege question by question, unless the court rules otherwise. Because criminal subpoenas carry serious risks, anyone who receives one should consider speaking with a lawyer before responding.
Consequences of Not Complying
A person who ignores a valid subpoena can be held in contempt of court, which may result in fines, a court order to comply, or in some cases jail. A party who fails to comply may also face sanctions in the case, including limits on the evidence they can present. The safe course is to respond in writing, raise any objections, and let the court resolve disputes.
Practical Checklist
- Note the deadline and the return date.
- Identify what is being requested and who is requesting it.
- Preserve the requested records; do not delete or alter them.
- Contact the issuing party to discuss scope if the request is broad.
- Consult an attorney if the request is burdensome, privileged, or criminal in nature.
This guide is general information, not legal advice. Subpoena rules and deadlines vary by jurisdiction, and an attorney can advise you on your specific situation.