You've received a document that might be a subpoena. Your immediate
reaction may be shock and a desire to immediately obey its request. As
with anything legal, it's best not to act on impulse but to carefully
consider the options before you. While you will likely need to comply,
there are times when a court will agree to modify the subpoena's
request or even to terminate it entirely. This guide cannot give you
legal advice about your situation and you should contact a lawyer for
specific legal advice. However, this section should be able to answer
the preliminary questions you may have about how best to respond.
1. What is a subpoena?
A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer's office.
Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:
- the judge presiding over the legal proceedings
- the clerk of the court where the lawsuit has been filed
- a private lawyer representing one of the parties in the lawsuit
- a government lawyer such as the Attorney General or District Attorney
Given that a subpoena is an order to produce yourself and/or
tangible items in a very specific legal setting, it is imperative that
you take it seriously. Failure to comply with a subpoena can have
serious consequences. However, you do have certain options in how best
2. Did you receive a subpoena?
You'll first want to determine precisely what you've received. In some instances, law enforcement authorities will use a search warrant, rather than a subpoena duces tecum, to access material in your possession. If you have been served with a search warrant, you cannot interfere with the search. You should call a lawyer immediately, note the scope of the search, watch and document where the authorities performed their search, and keep a record of any items seized.
Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you've received. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:
- the full name of a court in the document's title, or letterhead
- the word "Subpoena" in bold in the top third of the document
- the words "you are commanded to report," or a similar variation
- your name
- a specific date, time and location for you to appear or for you to provide the requested materials
- in some cases, the penalty for non-compliance will be included
Subpoenas are not necessarily filed with the court, so if you
have doubts about the document you've received, ask a lawyer or call
the person who signed the document and ask if they have in fact sent a
subpoena. (An address and or telephone number should follow the
signature.) If none of the above characteristics match your document,
refer to our sections on Responding to Correspondence Threatening Legal Action, and Responding to Lawsuits for help figuring out what you've received.
3. Accepting a Subpoena vs. Complying with a Subpoena
Once you've determined that you have received a subpoena, you
may feel that you want to contest the subpoena because you believe that
it is invalid or unreasonable. You can still do so despite having
received the subpoena (which in most cases arrived by registered mail,
or by a person delivering it to you and requesting your signature).
Acceptance of the subpoena does not constitute your assent to comply
with it. However, if you object to the terms of the subpoena, then you
must inform the court about your decision to challenge it.
4. Inconvenient Date & Cost of Travel
As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.
If appearing at the time and place specified by the subpoena is
of great inconvenience, call the person who issued the subpoena, and he
may be able to reschedule your appearance to a more convenient date.
However, keep in mind that postponement may not be an option because a
court date has been set for the trial and cannot be moved. If so, and
if you would suffer extreme hardship from having to appear, consult a
lawyer who may be able to help.
5. Filing an Objection to a Subpoena
The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.
You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:
- Improper service
- Scope of Request
It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn't even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.
- Confidential Material
- certain states have enacted "shield" laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources. Refer to our section on State Shield Laws to see whether your state has this law.
- both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.
- both state and federal law grant close relatives immunity from testifying in certain situations.
In some cases, law enforcement authorities use a
subpoena to a build a case against the subpoena recipient before
pressing charges. If you think that you may be the focus of a criminal
investigation, or worry about incriminating yourself when you testify,
do not comply with the subpoena without first consulting a lawyer.
6. Hiring a Lawyer
If you haven't already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you're comfortable with supplying the requested information, you may not need a lawyer's services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath. Refer to our section on Finding Legal Help for more help.
Before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:
- record events you may later forget
- evaluate your position and figure out your next steps
- focus your conversation with a lawyer (should you wish to consult with one)
- launch your own legal research
- potentially determine the subpoena's validity
7. Adding your subpoena to the CMLP Legal Threats Database
This is an important action because creating an entry in the Legal Threats Database will help others who receive similar subpoenas know that they are not alone, and assist them in weighing their options regarding how to respond. You will also help the CMLP track who is sending legal threats and make it possible for our lawyers to help others in a similar position.