A subpoena refers to a request to produce documents or appear in court. A prosecutor, district attorney, court clerk, or judge can issue this request. The word “subpoena” means under penalty. Therefore, anyone who receives this request but fails to comply may be subject to civil or criminal penalties.

Types of Subpoenas

Witness Subpoena: This is a request for someone to attend a court proceeding on a given date and offer their testimony as a witness.

Subpoena Duces Tecum: This means a request to produce evidence. It is a request to the person in question to produce documents, books, or other relevant records under their control at a given time or place in a deposition or court hearing. In many cases, compliance may be achieved through sending or mailing the records through email or presenting the records at a particular date without a physical appearance.

A Deposition Subpoena: This is a request for a person who is not involved in a lawsuit to present business records and/or attend a deposition to respond to certain pertinent questions. A deposition subpoena is different from a subpoena duces tecum in the sense that the testimony and documents requested are used in the discovery process before a court trial and may not appear in a court hearing.

How is a Subpoena Served?

A subpoena is normally issued by a notary public, justice of the peace, or court clerk. After a subpoena has been issued, it is served to the individual in either of the following ways:

Personal delivery or hand delivery
Emailed to the individual’s working email
Mailed to the individual’s address
Read aloud to the individual

What If There Are No Records to Produce?

The person named in a subpoena can only produce documents that exist and are under their control and custody. The responder is not required to produce documents that they do not control or create non-existent documents. If the documents requested for are not in the responder’s control or do not exist, the responder should inform the subpoenaing party. Subpoenas may have an attachment called an “affidavit of no records”. If the responder does not have the required records, they should fill in the affidavit and submit it together with the subpoena.

Can One Negotiate The Scope of Documents to Produce in a Subpoena?

One can negotiate for the scope of documents to produce when responding to a subpoena. In many cases, the requestor (person issuing a subpoena), has no idea what files or documents exist. The requestor is not interested in wasting time going through extraneous documents and may settle for significant information that is less than what is requested for in the subpoena. However, responders are advised not to produce anything that is beyond the requirements of the subpoena unless they are producing public records.

How to Respond to a Subpoena

A person who ignores a subpoena may be held liable for contempt of court. The first step should be to read the subpoena to determine the details of the request. If the subpoena relates to the production of documents, the responder should ensure that they have all the documents in place. If the subpoena relates to a court appearance, one should prepare to give their testimony. It is also important to confirm the trial date and time to avoid penalties for defaulting.

Penalties

A person who disobeys a subpoena is subject to criminal or civil contempt of court penalties. Criminal contempt is disrespectful or disruptive conduct at court. Civil contempt is when a responder fails to produce the documents or papers requested or disobeys the terms of a subpoena, thereby, hindering the justice system.

Generally, in cases of contempt of court, a hearing is held to give the non-compliant part a chance to explain themselves. The penalties for criminal and civil contempt include fines, jail time, or both. Contempt charges hold until the responder agrees to honor the terms of the subpoena. In some cases, the responder will be required to pay attorney fees to the person who initiated the contempt hearing.

Can One Refuse to Honor a Subpoena?

In cases where the information sought is lost, privileged, or goes against the responder’s Fifth Amendment right against incriminating themselves, the responders can fail to honor the terms of a subpoena.

Understanding Subpoenas and Their Importance

A subpoena is an authoritative and crucial request to produce documents or appear in court, often issued by a prosecutor, district attorney, court clerk, or judge. Derived from the term “under penalty,” it is evident that the consequences for non-compliance can be serious, ranging from civil to criminal penalties. Indeed, the power of a subpoena lies in its ability to compel individuals to testify or provide essential documentation that can significantly impact a case.

Various Types of Subpoenas

1. Witness Subpoena: This type of subpoena summons an individual to attend a court proceeding at a specified date and time, enabling them to provide valuable testimony as a witness.
2. Subpoena Duces Tecum: Translating to “bring with you under penalty,” this subpoena requests the recipient to produce specific documents, books, or relevant records under their control. Compliance can often be achieved by sending the documents via email or presenting them in person at an allocated time and place.
3. Deposition Subpoena: Unlike the Subpoena Duces Tecum, this subpoena requires an individual not involved in a lawsuit to produce business records and/or attend a deposition to answer pertinent questions. Used in the discovery process before a court trial, the provided testimony and documents may not appear in the actual court hearing.

Service of a Subpoena

Typically, a subpoena is issued by a notary public, justice of the peace, or court clerk. After its issuance, there are several methods of serving a subpoena to the individual, including:

• Personal or hand delivery
• Emailing to the individual’s work email
• Mailing to the individual’s address
• Reading aloud to the individual

Handling a Subpoena with no Records to Produce

It is important to note that the responder is only obliged to produce documents that currently exist and are under their control. They are not required to create non-existent documents or provide records beyond their possession. If the subpoenaed documents do not exist or are beyond the responder’s control, the responder must inform the subpoenaing party. An “affidavit of no records” may be attached to the subpoena, which the responder should complete and submit alongside the subpoena.

Negotiating the Scope of Subpoenaed Documents

Negotiations can take place regarding the scope of documents needed in response to a subpoena. Often, the requestor is unaware of what specific documents exist and is uninterested in sifting through extraneous information. Consequently, a requestor may agree to receive less information than initially requested, focusing on essential data instead. However, responders are advised against providing anything beyond the subpoena’s requirements unless it involves public records.

How to Appropriately Respond to a Subpoena

Ignoring a subpoena may result in a contempt of court charge. When served with a subpoena, individuals must first carefully read it and understand its contents. If it pertains to producing documents, responders should gather all relevant materials; if it concerns a court appearance, they must prepare to testify. Confirming trial dates and times is crucial to avoid penalties associated with defaulting.

Possible Penalties for Non-Compliance

Non-compliance with a subpoena can result in criminal or civil contempt of court charges. Criminal contempt refers to disrespectful or disruptive behavior in court, whereas civil contempt is when a responder fails to produce requested documents or disobeys a subpoena’s terms, thus hindering the justice system. A hearing is generally held for the non-compliant party to explain their actions. Penalties can include fines, imprisonment, or both, with contempt charges remaining in place until the responder complies with the subpoena. In some instances, the responder may be required to pay attorney fees for the initiator of the contempt hearing.

When Can a Subpoena Be Refused?

There are specific circumstances where a responder may justifiably refuse to comply with a subpoena. Situations include the subpoenaed information being lost, privileged, or in violation of the responder’s Fifth Amendment right against self-incrimination. In such cases, the responder can assert their rights and decline to honor the subpoena’s terms, although this decision should be based on sound legal advice or understanding of the applicable laws.