How to Respond to a Subpoena

HG.org
Oct 13, 2015
4 min read

A subpoena is a court-ordered mandate telling a person to show up in court or a deposition at a certain time or to provide a party of a case with certain information. Individuals who ignore a subpoena can find themselves in civil or criminal contempt of court. However, a person may not need to blindly comply with the subpoena.

Read the Subpoena The first thing that a person should do upon receiving a subpoena is to read it. A subpoena may state whether it is issued to get a person to testify at a hearing or trial, to get a person to provide certain documents or to get a person to testify at a deposition. If a person is being requested to provide certain documents, he or she should take proper steps to safeguard these documents or other pieces of evidence. There may be a notation on the subpoena regarding the date when such documents or evidence should be made available to the party responsible for the subpoena if it is requested at a time earlier than the hearing or trial date. The subpoena also lists the hearing date and time if applicable. The person receiving the subpoena should look to the caption of the case to see the parties that are involved in the litigation and the type of case it is. This can help the person to better prepare for testimony in the case. Determine Potential Objections The next step is for the potential witness to determine whether there are any potential objections that can limit or eliminate his or her need to provide testimony or evidence to the court. A witness may prefer to retain a lawyer in order to advise him or her about the need to provide testimony or evidence. Some of the following factors can present support for a possible objection to the subpoena: Privileged Information One reason why a person may not wish to provide testimony at a deposition or during a hearing is if the information is considered privileged. There are a variety of privileges that may apply in any given case and different privileges are recognized in different states. Additionally, certain privileges may only be available in a criminal context. One such privilege that may apply is attorney-client privilege. This privilege prevents communications between a lawyer and his or her client from being publicly revealed. Another privilege may exist in the form of marital communications. There are also other privileges recognized by various jurisdictions, including communications between accountants and clients, clergypersons and parishioners or holders of confidential information. Fifth Amendment Privilege Another potential reason for a person not to provide testimony is because of the threat of self-incrimination. A witness can ask not to be required to testify due to the possibility of incriminating himself or herself in a civil or criminal case. A witness may not be aware of the potential of self-incrimination until the questions head in that direction. Usually, a witness can assert this right at any time during the testimony. Procedural Flaws Another objection that may arise is if the subpoena is procedurally flawed. For example, a subpoena may be required to be served on a witness in person rather than through the mail. Additionally, many jurisdictions charge witness fees and mileage costs. If the subpoena is unaccompanied by the requisite fee, the subpoena may be flawed. Timing is another potential issue. For example, a subpoena that is issued after the official timeline for discovery has terminated may not be validated by the court if the information could have been procured during discovery. Additionally, the witness must be given the subpoena within the time limit provided by law. While some states allow a subpoena to require a witness to testify anywhere within the same state, some have a rule that prohibits issuing a subpoena on a person that would require him or her to travel more than 100 miles. Other Objections There may be other objections based on the factual circumstances. For example, the subpoena may require the witness to be subjected to undue burden or expense. Additionally, a subpoena may be quashed if it asks for confidential information or for information not in the possession, custody or control of the witness. Presentation of Objections An attorney may help present a series of written objections to the subpoena. This is often in the form of a motion to quash or a motion to modify the subpoena. This motion asks the court not to require the witness to provide testimony, provide evidence or limits the scope of such testimony. It must be timely, which may be within 14 days or submitted before the date of compliance in accordance with state law. Compliance If there are aspects of the subpoena that can be complied with that do not fall within the objections, the witness is expected to comply with these aspects. Copyright HG.org Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.