The word “subpoena” is from the Latin, sub (under) and poena (penalty). A subpoena is a piece of paper, usually a printed form, which is filled out by a lawyer in connection with a pending legal proceeding. It requires a person to appear in a Court proceeding “under penalty” of law. It is described as “a mandatory writ or process directed to and requiring one or more persons to appear at a time and place to come to answer questions concerning the matters at issue.” A “subpoena duces tecum” commands a witness to produce documents or other things under his or her control.
The first rule of subpoena issuance is that a subpoena can only be issued in connection with a pending case. Further, a “subpoena to attend and testify” may be used only to command a person to appear at a trial or hearing or at a deposition. A lawyer is not permitted to issue a subpoena to compel a person to appear in the lawyer’s office to discuss a case. A subpoena may be served by an adult person, by certified mail or by ordinary mail, but in the latter event, the mail shall contain a specified form of notice and acknowledgment of receipt of the subpoena. A person who ignores a subpoena is subject to a penalty for contempt of court.
If you receive a subpoena and are unable to attend, you should contact the issuing lawyer and advise of your unavailability. Often, the attorney will be able to accommodate you with a new date, especially if it is for a deposition and not a trial. You should be given reasonable advance notice so that you do not have to drop everything that you are doing in order to appear.
A distinct type of subpoena process governs the production of documents. If a lawyer seeks documents from a nonparty, that lawyer must first serve notice on every other attorney in the case identifying the nonparty and sending a draft copy of a subpoena. If any other party objects to the issuance of a subpoena, a hearing in Court is required. Once the requirements of the discovery rules concerning notice are satisfied, the lawyer may serve a subpoena to produce documents. The recipient is entitled to be paid the reasonable cost of reproduction and mailing – including a reasonable administrative fee – if the production is voluminous. Where the requested documents are sensitive or contain private matters you may wish to engage a lawyer to file a motion for protective order to bring the issue before the Court.
– Bill Brennan
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