What to Do If You Are Subpoenaed

A subpoena is a legal order requiring someone to appear or produce information (Cornell LII). Receiving one does not mean you did anything wrong; most people subpoenaed are witnesses.

Types of subpoenas

• Subpoena to testify (ad testificandum): appear at a deposition, hearing or trial
• Subpoena for documents (duces tecum): produce records, sometimes without appearing
• Combined subpoenas

They can be issued in civil cases, criminal cases, grand jury investigations and administrative proceedings.

Step 1: Read it carefully

Check the court and case name, who issued it, what you must do, the date, time and place, and any deadline.

Step 2: Confirm service and validity

Rules govern how subpoenas are served and how far a witness can be required to travel. In federal civil cases, a subpoena generally can require attendance only within 100 miles of where the person resides, works or regularly transacts business in person, with some exceptions (FRCP 45(c)).

Step 3: Decide whether to object

You can object or ask the court to quash or modify a subpoena that (FRCP 45(d)):

• Gives an unreasonable time to comply
• Requires travel beyond the geographic limits
• Seeks privileged or protected information
• Imposes an undue burden

In federal civil cases, written objections to document requests generally must be served before the compliance date or within 14 days after service, whichever is earlier. State rules vary.

Step 4: Prepare

• For documents: gather what is responsive, keep copies, and do not alter or destroy anything.
• For testimony: review relevant documents, tell the truth, answer only the question asked, and say "I don't know" or "I don't remember" when true.

Witness fees

Federal witnesses are generally entitled to an attendance fee of $40 per day plus mileage (28 U.S.C. 1821). State fees vary.

If you are a party or possible target

If the subpoena relates to a case where you might be liable or charged, talk to a lawyer before testifying. You may have a Fifth Amendment privilege. See grand juries.

Ignoring a subpoena

Failing to obey without an adequate excuse can be held in contempt (FRCP 45(g)), and courts can issue a bench warrant.

Can you subpoena records yourself?

Parties without lawyers can usually request subpoenas through the court clerk, following court rules for service.

A lawyer can negotiate the scope of a subpoena or file a motion to quash.

Sources

1. Cornell Law School LII: Federal Rules of Civil Procedure, Rule 45
2. Cornell Law School LII: 28 U.S.C. 1821, Per diem and mileage generally (witness fees)
3. Cornell Law School LII: Subpoena