In most cases, getting served a subpoena does not pose a legal risk to you. You simply need to openly and honestly share the information you have. Nevertheless, a subpoena is something to take seriously. It is also important to remember that documents you produce and things you say can be used against you later.
If you have any concerns about how you or your business may be affected by a subpoena, consult with an experienced business attorney. An attorney can review your documents or discuss your testimony with you. They can help you protect your rights while ensuring that you comply with the law.
Develop and improve products. List of Partners vendors. Your Money. Your Practice. Popular Courses. What is Subpoena? Key Takeaways A subpoena is a formal written order that requires a person to appear before a court, or other legal proceedings such as a Congressional hearing , and testify, or produce documentation. Attorneys typically request subpoenas, which are issued by the court and served through mail, email, or personal delivery. Compare Accounts. The offers that appear in this table are from partnerships from which Investopedia receives compensation.
This compensation may impact how and where listings appear. Investopedia does not include all offers available in the marketplace. Related Terms Petition Definition A petition is a legal document formally requesting a court order, which, along with complaints, are considered pleadings at the onset of a lawsuit. What Is a Cease and Desist?
State statutes and rules of court are quite likely to reflect the varying degrees of difficulty and expense attendant upon local travel. Present Rule 45 d 2 has two sentences setting forth the territorial scope of deposition subpoenas. The first sentence is directed to depositions taken in the judicial district in which the deponent resides; the second sentence addresses situations in which the deponent is not a resident of the district in which the deposition is to take place.
The Rule, as currently constituted, creates anomalous situations that often cause logistical problems in conducting litigation. The first sentence of the present Rule states that a deponent may be required to attend only in the county wherein that person resides or is employed or transacts business in person, that is, where the person lives or works.
Under this provision a deponent can be compelled, without court order, to travel from one end of that person's home county to the other, no matter how far that may be. The second sentence of the Rule is somewhat more flexible, stating that someone who does not reside in the district in which the deposition is to be taken can be required to attend in the county where the person is served with the subpoena, or within 40 miles from the place of service.
Under today's conditions there is no sound reason for distinguishing between residents of the district or county in which a deposition is to be taken and nonresidents, and the Rule is amended to provide that any person may be subpoenaed to attend a deposition within a specified radius from that person's residence, place of business, or where the person was served. The mile radius has been increased to miles. Purposes of Revision. The purposes of this revision are 1 to clarify and enlarge the protections afforded persons who are required to assist the court by giving information or evidence; 2 to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties; 3 to facilitate service of subpoenas for depositions or productions of evidence at places distant from the district in which an action is proceeding; 4 to enable the court to compel a witness found within the state in which the court sits to attend trial; 5 to clarify the organization of the text of the rule.
Subdivision a. This subdivision is amended in seven significant respects. First, Paragraph a 3 modifies the requirement that a subpoena be issued by the clerk of court. Provision is made for the issuance of subpoenas by attorneys as officers of the court. This revision perhaps culminates an evolution. Subpoenas were long issued by specific order of the court.
As this became a burden to the court, general orders were made authorizing clerks to issue subpoenas on request. Since , they have been issued in blank by the clerk of any federal court to any lawyer, the clerk serving as stationer to the bar.
In allowing counsel to issue the subpoena, the rule is merely a recognition of present reality. Although the subpoena is in a sense the command of the attorney who completes the form, defiance of a subpoena is nevertheless an act in defiance of a court order and exposes the defiant witness to contempt sanctions. In ICC v. Brimson , U. In CAB v. Hermann , U. And in NLRB v. Warren Co. The revision of Rule 45 put the attorney in a position similar to that of the administrative agency, as a public officer entitled to use the court's contempt power to investigate facts in dispute.
Two courts of appeals have touched on the issue and have described lawyer-issued subpoenas as mandates of the court. Waste Conversion, Inc. Marubent Cotton Corp. Young v. United States ex rel Vuitton et Fils S. This revision makes the rule explicit that the attorney acts as an officer of the court in issuing and signing subpoenas. Necessarily accompanying the evolution of this power of the lawyer as officer of the court is the development of increased responsibility and liability for the misuse of this power.
The latter development is reflected in the provisions of subdivision c of this rule, and also in the requirement imposed by paragraph 3 of this subdivision that the attorney issuing a subpoena must sign it.
Second, Paragraph a 3 authorizes attorneys in distant districts to serve as officers authorized to issue commands in the name of the court. Any attorney permitted to represent a client in a federal court, even one admitted pro hac vice, has the same authority as a clerk to issue a subpoena from any federal court for the district in which the subpoena is served and enforced.
In authorizing attorneys to issue subpoenas from distant courts, the amended rule effectively authorizes service of a subpoena anywhere in the United States by an attorney representing any party.
This change is intended to ease the administrative burdens of inter-district law practice. This change does not enlarge the burden on the witness. Pursuant to Paragraph a 2 , a subpoena for a deposition must still issue from the court in which the deposition or production would be compelled. Accordingly, a motion to quash such a subpoena if it overbears the limits of the subpoena power must, as under the previous rule, be presented to the court for the district in which the deposition would occur.
Likewise, the court in whose name the subpoena is issued is responsible for its enforcement. Third, in order to relieve attorneys of the need to secure an appropriate seal to affix to a subpoena issued as an officer of a distant court, the requirement that a subpoena be under seal is abolished by the provisions of Paragraph a 1.
Fourth, Paragraph a 1 authorizes the issuance of a subpoena to compel a non-party to produce evidence independent of any deposition. This revision spares the necessity of a deposition of the custodian of evidentiary material required to be produced. A party seeking additional production from a person subject to such a subpoena may serve an additional subpoena requiring additional production at the same time and place.
Fifth, Paragraph a 2 makes clear that the person subject to the subpoena is required to produce materials in that person's control whether or not the materials are located within the district or within the territory within which the subpoena can be served. The non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule Sixth, Paragraph a 1 requires that the subpoena include a statement of the rights and duties of witnesses by setting forth in full the text of the new subdivisions c and d.
Seventh, the revised rule authorizes the issuance of a subpoena to compel the inspection of premises in the possession of a non-party. Rule 34 has authorized such inspections of premises in the possession of a party as discovery compelled under Rule 37, but prior practice required an independent proceeding to secure such relief ancillary to the federal proceeding when the premises were not in the possession of a party.
Practice in some states has long authorized such use of a subpoena for this purpose without apparent adverse consequence. Paragraph b 1 retains the text of the former subdivision c with minor changes. The reference to the United States marshal and deputy marshal is deleted because of the infrequency of the use of these officers for this purpose.
Inasmuch as these officers meet the age requirement, they may still be used if available. A provision requiring service of prior notice pursuant to Rule 5 of compulsory pretrial production or inspection has been added to paragraph b 1.
The purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things. Such additional notice is not needed with respect to a deposition because of the requirement of notice imposed by Rule 30 or But when production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced.
Paragraph b 2 retains language formerly set forth in subdivision e and extends its application to subpoenas for depositions or production. Paragraph b 3 retains language formerly set forth in paragraph d 1 and extends its applications to subpoenas for trial or hearing or production.
Subdivision c. This provision is new and states the rights of witnesses. It is not intended to diminish rights conferred by Rules 26—37 or any other authority. Paragraph c 1 gives specific application to the principle stated in Rule 26 g and specifies liability for earnings lost by a non-party witness as a result of a misuse of the subpoena. No change in existing law is thereby effected. Abuse of a subpoena is an actionable tort, Board of Ed. Farmingdale Classroom Teach.
Ass'n , 38 N. The liability of the attorney is correlative to the expanded power of the attorney to issue subpoenas. Paragraph c 2 retains language from the former subdivision b and paragraph d 1. The day period for response to a subpoena is extended to 14 days to avoid the complex calculations associated with short time periods under Rule 6 and to allow a bit more time for such objections to be made. A non-party required to produce documents or materials is protected against significant expense resulting from involuntary assistance to the court.
This provision applies, for example, to a non-party required to provide a list of class members. The court is not required to fix the costs in advance of production, although this will often be the most satisfactory accommodation to protect the party seeking discovery from excessive costs. In some instances, it may be preferable to leave uncertain costs to be determined after the materials have been produced, provided that the risk of uncertainty is fully disclosed to the discovering party.
See, e. Columbia Broadcasting Systems, Inc. Paragraph c 3 explicitly authorizes the quashing of a subpoena as a means of protecting a witness from misuse of the subpoena power. It replaces and enlarges on the former subdivision b of this rule and tracks the provisions of Rule 26 c. While largely repetitious, this rule is addressed to the witness who may read it on the subpoena, where it is required to be printed by the revised paragraph a 1 of this rule.
Subparagraph c 3 A identifies those circumstances in which a subpoena must be quashed or modified. It restates the former provisions with respect to the limits of mandatory travel that are set forth in the former paragraphs d 2 and e 1 , with one important change.
Under the revised rule, a federal court can compel a witness to come from any place in the state to attend trial, whether or not the local state law so provides. This extension is subject to the qualification provided in the next paragraph, which authorizes the court to condition enforcement of a subpoena compelling a non-party witness to bear substantial expense to attend trial.
The traveling non-party witness may be entitled to reasonable compensation for the time and effort entailed. Clause c 3 A iv requires the court to protect all persons from undue burden imposed by the use of the subpoena power.
Illustratively, it might be unduly burdensome to compel an adversary to attend trial as a witness if the adversary is known to have no personal knowledge of matters in dispute, especially so if the adversary would be required to incur substantial travel burdens.
Subparagraph c 3 B identifies circumstances in which a subpoena should be quashed unless the party serving the subpoena shows a substantial need and the court can devise an appropriate accommodation to protect the interests of the witness.
An additional circumstance in which such action is required is a request for costly production of documents; that situation is expressly governed by subparagraph b 2 B. Clause c 3 B i authorizes the court to quash, modify, or condition a subpoena to protect the person subject to or affected by the subpoena from unnecessary or unduly harmful disclosures of confidential information.
It corresponds to Rule 26 c 7. Clause c 3 B ii provides appropriate protection for the intellectual property of the non-party witness; it does not apply to the expert retained by a party, whose information is subject to the provisions of Rule 26 b 4. Do you need to provide materials? Subpoena requests should be very specific.
Immediately make note of the court date or filing deadline on your calendar. If your subpoena states that you must appear in court, make sure you clear your schedule for that date. In most situations it is appropriate to contact the attorney who requested or issued the subpoena.
Sometimes, though, the subpoena may be hostile to your interests. There may also be an opportunity to quash or contest the subpoena, or there may be grounds to assert your Fifth Amendment privilege against self-incrimination. We can also help to prepare you if you are required to go to court as a witness in a criminal matter. Fill out the form below to request more information about how we can serve you.
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