How to Subpoena Evidence in Court
A subpoena is a legal document issued under the authority of a court that compels a person to testify as a witness or produce documents, records, or other tangible evidence. Subpoenas are essential tools in both civil and criminal litigation, and understanding how to use them properly is critical for building a strong case.
Types of Subpoenas
There are two primary types of subpoenas:
Subpoena ad testificandum — Commands a person to appear and give testimony at a specific time and place. This is the standard witness subpoena used to compel someone to testify at a deposition, hearing, or trial.
Subpoena duces tecum — Commands a person or entity to produce documents, electronically stored information, or other tangible evidence. This is used to obtain records such as medical files, financial statements, business records, surveillance footage, and communications.
Some subpoenas combine both requirements, commanding the recipient to appear and bring specified documents.
Who Can Issue a Subpoena?
The authority to issue subpoenas varies by jurisdiction and type of proceeding:
Attorneys — In federal court (under Rule 45 of the Federal Rules of Civil Procedure) and in most state courts, licensed attorneys can issue subpoenas on behalf of a court without first obtaining a judge's approval.
Parties in pro se — Self-represented litigants can typically request subpoenas from the court clerk.
Court clerks — Clerks issue subpoenas upon request, often by filling in blank forms and stamping them with the court's seal.
Government agencies — Administrative agencies such as the IRS, SEC, and FTC have statutory authority to issue administrative subpoenas during investigations.
Grand juries — Grand jury subpoenas are issued under the authority of the court and compel testimony or document production as part of a criminal investigation.
The Subpoena Process: Step by Step
#### Step 1: Determine What You Need
Before issuing a subpoena, clearly define what you are seeking:
Testimony — Identify the witness and what testimony they can provide that is relevant to your case.
Documents — Describe the documents with specificity. Vague or overly broad requests are more likely to be challenged or quashed.
Relevance — Ensure the evidence you seek is relevant to the claims or defenses in the case. Subpoenas cannot be used for fishing expeditions.
#### Step 2: Prepare the Subpoena
Use the correct form — Each court has standard subpoena forms. In federal court, use AO 88 (civil) or AO 89 (criminal).
Include required information — The subpoena must include the court name, case name and number, the name of the person being subpoenaed, the date, time, and place of appearance or production, and a description of any documents or items to be produced.
Attach any required witness fees — In federal court and most state courts, a subpoena for testimony must be accompanied by the statutory witness fee and mileage allowance at the time of service.
#### Step 3: Serve the Subpoena
A subpoena must be properly served to be enforceable:
Personal service — In most jurisdictions, subpoenas must be served in person by delivering a copy directly to the individual. This can be done by a process server, sheriff's deputy, or any person who is not a party to the case and is at least 18 years old.
Service on a business — Subpoenas directed to a business entity are typically served on a registered agent, officer, or manager.
Geographic limits — Subpoenas have geographic reach limits. In federal court, a subpoena for trial testimony generally cannot require travel more than 100 miles from where the person resides, works, or regularly transacts business.
Timing — Serve the subpoena with reasonable notice. What constitutes reasonable notice varies, but courts generally expect at least 10-14 days before the required appearance or production date.
#### Step 4: Handle Compliance or Objections
Compliance — If the subpoenaed person or entity complies, review the produced documents or prepare for the witness's testimony.
Objections — The recipient may serve written objections to all or part of the subpoena. Common objections include:
- Undue burden — The request is too broad, expensive, or time-consuming to comply with.
- Privilege — The requested materials are protected by attorney-client privilege, doctor-patient privilege, or another recognized privilege.
- Relevance — The requested evidence is not relevant to the case.
- Confidentiality — The documents contain trade secrets, proprietary information, or other confidential material.
Motion to quash — The recipient can file a motion asking the court to cancel (quash) the subpoena. The issuing party can respond, and the court rules on whether the subpoena is valid.
Enforcing a Subpoena
If the recipient fails to comply with a valid subpoena without filing objections:
Motion to compel — The issuing party can file a motion asking the court to order compliance.
Contempt of court — A person who willfully disobeys a subpoena can be held in contempt of court, resulting in fines or imprisonment.
Sanctions — The court can impose monetary sanctions on a non-complying party.
Subpoenas to Third Parties
Subpoenas are commonly used to obtain evidence from non-parties to the case:
Medical records — Subpoena medical providers for treatment records (subject to HIPAA requirements and patient authorization).
Financial records — Subpoena banks, employers, or financial institutions for account records, pay stubs, and tax documents.
Electronic records — Subpoena technology companies for emails, social media posts, cell phone records, and other digital evidence.
Surveillance footage — Subpoena businesses or government entities for security camera recordings.
Important Limitations
Cannot compel self-incrimination — Under the Fifth Amendment, a witness can refuse to answer questions if the testimony would incriminate them.
Privileged communications — Attorney-client, doctor-patient, spousal, and clergy-penitent communications are generally protected from subpoena.
Work product doctrine — Materials prepared in anticipation of litigation by a party or their attorney are generally protected.
Proportionality — Under the 2015 amendments to the Federal Rules of Civil Procedure, discovery (including subpoenas) must be proportional to the needs of the case.
Disclaimer: Subpoena rules and procedures vary by jurisdiction and type of proceeding. Consult an attorney for guidance on issuing and enforcing subpoenas in your specific case.