21 Jan 24

Civil vs. Criminal Federal Subpoenas: Key Differences

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Last Updated on: 21st January 2024, 10:45 pm

Civil vs. Criminal Federal Subpoenas: Key Differences

When it comes to the legal system, there are important distinctions between civil and criminal cases. This is definitely true when it comes to federal subpoenas. Subpoenas are official demands for documents, testimony, or tangible things that are relevant to a legal proceeding. Both civil and criminal cases utilize subpoenas to compel witnesses or entities to produce information. However, there are some notable differences that set civil and criminal federal subpoenas apart.

Overview of Civil vs. Criminal Cases

First, it’s helpful to understand the basic differences between civil and criminal cases. Civil cases are disputes between private parties, like individuals, organizations, or companies. These usually involve claims related to contracts, personal injuries, or property rights. Criminal cases involve prosecuting defendants for offenses against society. Prosecutors file charges on behalf of the government against individuals or entities accused of committing crimes.So civil cases are private disputes, while criminal cases are public offenses for which the government seeks justice. The stakes are higher in criminal cases since defendants may face jail/prison time, fines, probation, or other penalties if convicted. The standards of proof are also higher, with prosecutors needing to establish guilt “beyond a reasonable doubt.” In civil cases, plaintiffs usually need only show a “preponderance of evidence” to prevail.

Key Differences in Civil vs. Criminal Subpoenas

Given the unique nature of civil vs. criminal cases, there are important differences in how federal subpoenas are handled for each:

Legal Authority

Civil subpoenas are issued under the authority given by Federal Rule of Civil Procedure 45. Criminal subpoenas derive their authority from federal statutes and Federal Rule of Criminal Procedure 17. This gives criminal subpoenas more legal force.

Purpose and Scope

The scope of information sought by civil subpoenas is usually quite broad, intended to help prove or disprove liability in private disputes. Criminal subpoenas typically have a more targeted scope relevant to the alleged criminal offenses.


Failure to comply with a civil subpoena may be considered contempt of court. But criminal subpoenas have more stringent enforcement. Prosecutors can threaten uncooperative subpoena recipients with immediate arrest or criminal charges (Source).

Constitutional Protections

Criminal subpoenas must comply with the 4th Amendment protections against unreasonable search and seizure. The threshold for reasonableness is higher due to the liberty interests at stake. Civil subpoenas have fewer constitutional barriers to clear.

Challenging and Quashing

It may be easier to file a motion to quash (block) a civil subpoena if it imposes undue burden or expense. Challenging a criminal subpoena is more difficult thanks to prosecutorial discretion and judicial deference afforded in criminal matters.


Criminal subpoenas often remain sealed as part of confidential grand jury proceedings. Civil subpoenas are usually open records available to the public and press.

Examples Comparing Civil and Criminal Subpoenas

Let’s take a look at some examples to see how civil and criminal subpoenas differ in practice:

Example 1: Employment Dispute

A civil employment lawsuit may involve a subpoena for personnel records, employee complaints, and communications involving the plaintiff. This helps establish evidence related to the allegations of workplace discrimination or wrongful termination.A criminal investigation into employment fraud would involve subpoenas focused specifically on documents and testimony related to the fraudulent transactions or statements. This seeks evidence to establish the elements of criminal offenses.

Example 2: Product Liability Case

A products liability lawsuit could have broad subpoenas requesting design documents, safety testing records, consumer complaints, and manufacturing specifications for the defective product. This wide-ranging discovery aims to prove the defendant’s liability.A criminal fraud prosecution against a pharmaceutical company may subpoena documents specifically related to FDA reporting requirements, clinical trial records, and marketing of the drug’s uses – seeking evidence of intentional deception.

Example 3: Financial Disputes

A civil securities fraud lawsuit may subpoena audits, financial statements, emails, and other business records to uncover misrepresentations related to stock investments.A criminal securities fraud investigation would subpoena documents and communications directly tied to statements or transactions that violated statutes defining securities fraud. The focus is building a case on the legal elements constituting criminal offenses.

Working with an Attorney

As these examples illustrate, there are important nuances distinguishing civil discovery from criminal prosecution. Navigating subpoenas in both contexts requires an understanding of the applicable legal standards. If you find yourself on the receiving end of a federal civil or criminal subpoena, it’s essential to engage legal counsel with relevant experience. An attorney can advise on response strategy, negotiate scope if needed, and file motions to quash defective subpoenas. Relying on proper legal advice helps ensure appropriate compliance while avoiding undue liability.


For more information on federal subpoenas, see these additional resources: