Everything You Need to Know About Subpoenas
Reviewed by Carina Jenkins, J.D.
There's a knock on the door, and someone hands you a subpoena. Getting served with a subpoena is a stressful experience for most people, but it's actually a relatively common part of the litigation process.
Subpoenas can be a valuable tool for you if you need testimony or documents from another person. So, what is a subpoena, and how do they work?
A subpoena is a legal document ordering a person to give testimony for a legal proceeding. Subpoenas usually require testimony in a courtroom for a trial or other hearing before a judge. However, sometimes subpoenas require a person to testify at a deposition, administrative hearing or another proceeding.
Some subpoenas require a person or business to appear and provide written documents or evidence in their possession. When a subpoena orders a person to produce documents, it may be called a subpoena duces tecum.
Often, a court clerk or judge issues subpoenas in relation to an ongoing case. Many jurisdictions also allow licensed attorneys to issue subpoenas. Self-represented parties can request that the court clerk issue a needed subpoena. Sometimes other governmental bodies, such as Congress or administrative agencies, issue subpoenas for hearings.
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A subpoena can request that the person subpoenaed:
- Appears at a particular place and time to testify
- Provide documents, objects or evidence
- Allows another party to enter and inspect a designated premises at a specific date and time
However, there are limitations on subpoenas. The testimony or documents generally must be admissible and relevant to the case.
Some testimony and documents are protected by legal rules that supersede subpoena powers. The Fifth Amendment to the United States Constitution protects people from self-incriminating testimony. This rule primarily comes up in criminal cases where the defendant can't be required to testify. However, anyone can usually refuse to testify if their answer might be self-incriminating.
Testimony and documents protected by privilege generally can't be subpoenaed. Privilege can apply to:
- Licensed counselors and priests
- Spouses, under certain circumstances
There are exceptions to most types of privilege. Every jurisdiction has its own laws, so precisely what can be subpoenaed depends on the court hearing the case.
Being subpoenaed means someone has given you a subpoena to testify, produce documents or provide other evidence. Getting a subpoena doesn't make you a party to the case, but you may be required to participate as a witness.
Subpoenas usually must be personally served on you by a process server or neutral third party to be valid. Service requirements vary by state and the type of case, so you may wish to check local requirements.
Typically, subpoenas can't be served by mail or served by a party to the case. However, you can sign a "waiver of service," a legal document stating you've accepted service.
Although many people have negative feelings about being subpoenaed, the process isn't always adversarial. You could be willing to provide testimony or documents but have a reason for wanting a subpoena. The reason could be as simple as needing the subpoena to ensure you're excused from work or school on the day of your testimony. A bank, medical facility or business may want to avoid sharing documents without a subpoena for legal reasons. When subpoenas are issued for these reasons, they're sometimes called “friendly subpoenas.”
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Each subpoena has information on what you need to do to comply, and responding may require nothing more than following these instructions. This could involve turning over documents or testifying on the requested date.
However, you may wish to proceed with caution and seek legal advice. Occasionally, non-parties become joined in the case or the targets of separate lawsuits as the result of subpoenas. You may want to get legal advice if a subpoena:
- Requests a high volume of documents
- Is overly broad, vague or confusing
- Requests evidence that may be difficult to produce
- You're concerned that the Fifth Amendment, privilege or another legal protection applies to your testimony
You may also wish to speak with a lawyer or your employer for guidance if you're subpoenaed regarding business records or something you witnessed at work.
If you don't want to comply or believe the subpoena is asking for something covered by privilege or other legal protections, you'll need to take further action. You should almost never ignore a subpoena. Failure to respond or comply could result in a judge finding you in contempt of court.
You or your lawyer can file a "motion to quash" if you believe you shouldn't have to comply with the subpoena. This document explains the legal reasons why you shouldn't have to comply, and you'll need to file the motion with the court overseeing the case. The court may rule on the motion ahead of time, or you may need to attend court for a ruling.
Sometimes you don't need to respond to a subpoena if the party who issued the subpoena didn't serve it properly. For example, if you're in a jurisdiction that requires personal service, you may be able to ignore a subpoena that was mailed to you. However, it's always a good idea to speak with a lawyer to ensure you thoroughly understand the law before choosing to ignore a subpoena.
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