What is a Subpoena?

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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