What is Subpoena?

A subpoena is a formal written order that requires a person to appear before a court, or other legal proceedings (such as a Congressional hearing), and testify, or produce documentation.

Key Takeaways

  • A subpoena is a formal written order that requires a person to appear before a court, or other legal proceedings (such as a Congressional hearing), and testify, or produce documentation.
  • Attorneys typically request subpoenas, which are issued by the court and served through mail, email, or personal delivery.
  • A subpoena cannot be ignored as it is a court order and a failure to respond to it may be punishable as contempt of court.

Understanding Subpoena

Essentially, a subpoena, which literally means 'under penalty', requires one to inform under oath (testify) on the facts that are at issue in a pending case. A subpoena is typically requested by an attorney on behalf of the court and issued by a court clerk, notary public or justice of the peace. A subpoena may be served on an individual either through personal delivery, email, certified mail or even by reading it out aloud. It is also called a writ or administrative summons. A subpoena cannot be ignored as it is a court order and a failure to respond to it may be punishable as contempt of court.

Criminal and civil attorneys use subpoenas to obtain information that may bolster their client’s case. If a witness is served with a subpoena but does not appear in court on the specified date, the attorney who had initiated the subpoena can ask for the court for an adjournment to another date to buy more time to contact the witness. Alternately, the attorney may request a warrant from the court to be issued for the witness’s arrest due to failure to appear in court.

There are three types of subpoenas:

  1. A witness subpoena is a court order that requires someone to appear in court on a certain date and testify as a witness.
  2. A subpoena duces tecum is a court order that requires the subpoenaed individual to produce evidence such as documents or records at a specified time and place in a court hearing. This is usually part of the pre-trial discovery process.
  3. A deposition subpoena is a court order requiring a person who is a third-party—not a party to a lawsuit—to provide copies of records and/or appear at a deposition to answer questions asked by one of the parties involved in the lawsuit. 

What's in a Subpoena

A valid subpoena should include the following:

  • The name of the court issuing the subpoena
  • The name, address, and contact details of the attorney who initiated the subpoena
  • The names of the parties involved
  • The assigned case docket number

If you receive a subpoena, legal experts recommend double-checking the hearing date and time and rearranging your schedule to ensure you will be present, thereby avoiding a stiff penalty for failure to appear. It is also recommended that you know exactly what documents are required to be produced by the subpoena, and ensuring they are kept safe until the hearing.

Note that documents do not only mean paper documents, but also photographs, sound or video recordings, and information storage devices. If you are required to testify, experts advise that you determine who is requesting you to do so and why so that you are sufficiently prepared to provide testimony.

In business cases, legal experts recommend that the company served with a subpoena conduct adequate due diligence to determine the underlying lawsuit or proceeding from which the subpoena was issued. This information may reveal whether the subpoenaed company or one of its officers is the target of a criminal or civil investigation, or whether the company may be joined as a party to the lawsuit. Legal counsel may be necessary to ascertain the optimal way to respond to the subpoena.