How to Fight a Subpoena

Most court cases involve disputed facts that must be resolved by a judge or jury. Parties track down evidence to obtain more of the facts they need to persuade the court. A subpoena is one of the ways to obtain that evidence. It's a legal document issued by the court requiring the appearance of a person to testify and/or the production of documents or other evidence.

Subpoenas must be issued and served according to strict court guidelines. If they are not, the party receiving the subpoena can ask the court to “quash” or limit it.

When a party is preparing for a lawsuit, both the facts and the law are important. But the facts come first, since the law to be applied usually depends on the facts of the case.

Parties gather the facts of a case through the discovery process. This includes a variety of discovery tools, including demands that witnesses show up to testify at depositions and question-and-answer sessions under oath conducted by the parties or their attorneys. Sometimes, the person called for a deposition is asked to bring relevant documents or other tangible evidence.

A subpoena is a legal document that is a court order requiring action on the part of the person subpoenaed. The term “subpoena” means “under penalty,” because failure to comply with a subpoena leads to court penalties including fines, jail time or both.

Generally, a subpoena mandates a person’s appearance at a court hearing or a legal proceeding. It may also require the person to bring specified documents or evidence with her that may have relevance to the case. Sometimes a subpoena is for the documents alone.

Read More: How to Object to a Service of a Subpoena

Subpoenas can be issued by a judge or clerk of court. However, attorneys in both criminal and civil cases are considered officers of the court. An attorney can issue and sign a subpoena on behalf of a court in which he is authorized to practice law.

What if a party is in court representing himself (called “pro se”) and doesn’t have an attorney? In some cases, a party representing himself also has the power to issue and sign a subpoena, but it can vary according to state laws.

A party to a legal case can issue a subpoena to get the testimony of someone who is a witness to some of the circumstances of a dispute. This type of subpoena is called a subpoena ad testificandum, meaning a court order to testify.

Subpoenas are also used to gather evidence. This demand to produce documents or other tangible evidence is called a subpoena duces tecum. It can be used to obtain many different types of evidence, including:

• tax returns.
• business records.
• financial records.
• computer files and downloaded material.
• medical bills.
• insurance statements.
• photographs.
• employment records.
• blood test results.
• breathalyzer test results.
• property records.

A subpoena to testify is a personal court order. That means that it compels the testimony of the person to whom it is addressed and on whom it is served. It cannot compel the testimony of another person.

For example, if Jane Doe is served with a personal subpoena to testify, she must appear to answer questions under oath about what she knows. The subpoena to Jane Doe cannot compel her mother to testify, for example, or her twin brother.

The subpoena to testify will likely require the witness to appear at either a court proceeding or at a deposition. In either case, the subpoena sets out the date, time and place where she must appear. Once she is there, the witness will be sworn in and asked questions, which she must answer under penalty of perjury.

A subpoena requiring the production of documents or other tangible objects does not always require a personal appearance. Sometimes it does, so it’s important to read it carefully. For example, the subpoena may require a witness to appear and bring with him his tax returns for the past three years or all the photographs he took at the scene of an accident.

Alternatively, it can simply require the opportunity to review records or a photocopy of the records. This is often the case when the records are extensive.

The subpoena must contain certain information, including:

• a description of the specific documents or evidence that must be produced;
• a statement describing why the materials requested are relevant to the case; and
• a statement that the witness subpoenaed has the materials in his possession or control.

In the law, “service” of a document has a special meaning: The document must be given to the person in one of the ways the court requires. The methods of delivering a document are intended to make sure that the person actually receives the document. This is important because there are penalties that attach if the person fails to comply with the court order.

Once a subpoena is issued by an appropriate officer of the court, it must be presented to the individual in one of the ways permitted by state law. The most commonly used manner of service is personal service, or personal delivery. This happens when an adult who is not a party to the action hand delivers the document to the person.

In some jurisdictions, in some circumstances, a party can serve the subpoena by email, certified mail or other methods. Whoever serves the subpoena must file an affidavit under penalty of perjury with the court describing how, when and where he served the document.

A person served with a subpoena must respond, since it is a court order. She may respond in several ways, depending on the circumstances. Her basic choices are to comply with the subpoena (which means she will appear to testify and/or provide the requested documents) or not to comply. Non-compliance may be appropriate if the subpoena is invalid or unreasonable.

A person receiving a subpoena who believes the subpoena to be invalid or unreasonable must tell the court about the issues. Usually this is done by filing a motion to quash or modify the subpoena.

There are many reasons to object to a subpoena. Some of the most commons reasons a witness files a motion to quash or modify are:

• The subpoena was not served on the witness according to the requirements of state law.
• The subpoena is overly broad and asks for material that is totally irrelevant to the case.
• The subpoena asks the witness to produce material or evidence that will take extraordinary effort to gather or documents or charts that the witness will need to create.
• The subpoena asks for the witness to testify about confidential matters or requires confidential documents, with “confidential” defined by the applicable laws in the jurisdiction.
• The subpoena requires an individual to testify against himself when such testimony could result in criminal liability.

It is best for an individual to consult with an attorney if he believes that any of these objections apply. Laws and court rules vary by jurisdiction.