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.