Motions to Compel Testimony After Refusing to Comply With a Federal Subpoena

Getting a subpoena can be scary. You may not want to testify or share information. But you have to respond. If you don’t, the party that issued the subpoena can file a motion to compel against you. This article explains motions to compel and what happens if you ignore a federal subpoena.

What is a Subpoena?

A subpoena is a writ ordering you to appear at a trial, hearing, or deposition to give testimony or produce documents. There are two main types of subpoenas:

• A subpoena ad testificandum orders you to appear and give oral testimony.
• A subpoena duces tecum orders you to produce documents or other tangible items.

The court issues subpoenas at a party’s request. Once issued, the party serves the subpoena. You must comply unless you get the court to quash or modify it.

What Happens If You Ignore a Federal Subpoena?

You could face fines or jail time for contempt of court. Here are some key points:

• A subpoena is a court order. Ignoring it is punishable as contempt under 18 U.S.C. § 401.
• The court may fine or imprison you for up to six months if you are held in contempt.
• You could also get charged with a misdemeanor under 18 U.S.C. § 402.

So don’t just ignore a subpoena! Get legal advice about your options.

What Happens If You Don’t Comply with a Subpoena?

If you don’t comply, the party that issued the subpoena will likely file a motion to compel against you. Here’s the process:

1. The party files a motion to compel in the court where compliance is required.
2. The court reviews the motion and your objections, if any.
3. The court decides whether to order you to comply with all or part of the subpoena.
4. If you violate the order, contempt charges are likely.

This process applies to both trial and grand jury subpoenas. We’ll now look at the details.

Motions to Compel Compliance with Trial Subpoenas

For a trial subpoena, the motion to compel goes to the court where compliance is required. This might not be the same court that issued the subpoena.

Under Rule 45, the motion must be filed in the district where the subpoena requires compliance.[2] For example:

• You get a trial subpoena from the U.S. District Court for the District of Alaska.
• It requires you to testify at a trial in the District of Hawaii.
• The motion to compel goes to the U.S. District Court for the District of Hawaii.

The compliance court will decide if you have to comply with the subpoena. If you violate its order, contempt charges may follow.

Subpoena-Related Motions

Under Rule 37(a), motions to compel compliance are limited to two situations:[1]

• You refuse to answer questions during a deposition.
• You fail to respond to written questions under Rule 31.

In either case, the party must confer with you first. If you don’t resolve the issue, the party can move to compel.

Transferring the Motion

The court may transfer a motion to compel to the issuing court. For example:

• You get a subpoena from the District of Alaska.
• You file a motion to quash there.
• The party files a motion to compel in Hawaii.
• The Hawaii court transfers the motion to compel to Alaska.

Now the Alaska court will rule on both your motion to quash and the motion to compel. This prevents inconsistent rulings.

Contempt Sanctions

Both the compliance court and issuing court may hold you in contempt if you violate a court order. The compliance court enters the contempt order. But it can transfer the order to the issuing court to enforce it.[2]

Motions to Compel Compliance with Grand Jury Subpoenas

The process is similar for grand jury subpoenas. The U.S. Attorney’s Office issues the subpoena. If you don’t comply, they move to compel in the district where compliance is required. The court reviews your objections, if any. Then the court decides whether to order compliance with all or part of the subpoena.

If you violate the order, contempt charges are likely. The court may also direct the government to arrest you and hold you until you comply.

Defenses to Motions to Compel

You can raise defenses to oppose a motion to compel. Here are some common ones:

• Lack of jurisdiction – Argue the court lacks authority over you.
• Improper service – Claim you were not properly served.
• Unreasonable scope – Assert the subpoena is overbroad.
• Undue burden – Allege compliance would be unreasonably burdensome.
• Privilege – Maintain the subpoena seeks privileged information.

File a motion to quash to raise these defenses before the court orders compliance. You may be able to avoid the motion to compel altogether.

How to Avoid Contempt after an Order to Comply

If the court grants a motion to compel, you must comply to avoid contempt. Consider these steps:

• Negotiate a reasonable compliance schedule if needed.
• Be sure you understand exactly what the order requires.
• Get help from a lawyer if you’re unsure what to do.
• Follow the order to avoid fines or jail time.

You may also be able to appeal the order. But you must seek a stay pending appeal to delay compliance.

When the Government Issues the Subpoena

Special rules apply when you get a subpoena from the government. Here are some key points:

• Get a lawyer experienced with government investigations.
• Don’t ignore the subpoena. Seek to modify it instead.
• Negotiate with the agents about the scope of the subpoena.
• File a motion to quash to raise defenses.
• Comply with any court order to avoid contempt.

The government may threaten sanctions for non-compliance. But they often compromise if you show willingness to cooperate.

Subpoenas Seeking Privileged Information

If a subpoena seeks privileged information, take these steps:

1. Review the subpoena for privileged information.
2. Assert the privilege and explain why it applies.
3. Negotiate to narrow the subpoena’s scope.
4. Move to quash if negotiations fail.
5. Refuse to answer specific questions based on privilege.

Claiming privilege improperly can lead to contempt. Get advice from a lawyer experienced in privilege issues.

Conclusion

Subpoenas should not be ignored. Get legal advice right away if you get one. Failing to comply can lead to serious contempt charges. But with proper legal help, you can often avoid or limit the subpoena’s impact.