NATIONALLY RECOGNIZED FEDERAL LAWYERS
The Ins and Outs of Federal Subpoenas
|Last Updated on: 2nd October 2023, 05:51 pm
The Ins and Outs of Federal Subpoenas
Getting a subpoena can be pretty intimidating. I remember when I first got one – my hands were shaking when I opened that envelope! But once I learned more about what federal subpoenas are and how they work, I realized they’re not as scary as they seem. This article will walk you through the basics so you know what to expect if you ever get a federal subpoena.
What is a federal subpoena?
A federal subpoena is basically a court order for you to provide information related to a court case. This could mean showing up to testify at a trial or deposition, or handing over physical evidence or documents. Federal subpoenas are issued under Rule 45 of the Federal Rules of Civil Procedure, which sets out all the requirements and restrictions.
There are two main types of federal subpoenas:
- A subpoena to testify – this orders you to appear at a trial, hearing, or deposition to answer questions.
- A subpoena to produce documents or objects – this orders you turn over physical evidence or records.
Subpoenas are used in both civil and criminal cases. For example, if you witnessed a car accident, the insurance companies might subpoena you to testify about what you saw. Or if you have records related to a federal investigation, the government could subpoena those documents.
Who can issue a federal subpoena?
Under Rule 45, attorneys who are licensed to practice in federal court can issue subpoenas. This includes government attorneys as well as lawyers in private practice. The attorney issues the subpoena by filling out a standard court form. Once the subpoena is issued, it must be properly served on the recipient.
How are federal subpoenas served?
For a federal subpoena to be valid, the recipient has to be officially “served” with it. This usually means someone personally handing the subpoena documents to the recipient. Subpoenas can be served by anyone who is over 18 and not involved in the case. Usually a process server, U.S. Marshal, or sheriff’s deputy will handle service.
The timing of service is important too. For subpoenas to testify, service has to happen at least 14 days before the scheduled deposition or hearing. For subpoenas to produce documents, service must be at least 45 days before the production deadline. The court can shorten these timelines, but generally wants to give the recipient reasonable notice.
Do I have to comply with a federal subpoena?
In most cases, yes – if you are properly served with a federal subpoena, you are legally required to comply. But there are some exceptions. You may be able to get the subpoena quashed or modified if it would impose an undue burden or hardship on you. For example, if the subpoena requires you to travel an unreasonable distance or incur substantial costs.
You can also object to the subpoena if it asks for information protected by privilege, such as attorney-client communications or trade secrets. If you have a valid basis for objecting, you can file a motion to quash with the court [Rule 45(d)(3)]. This asks the judge to cancel or modify the subpoena.
What happens if I don’t comply?
If you don’t comply with a federal subpoena, the party that issued it can ask the court to hold you in contempt. This means you could face fines or even jail time for defying a court order. Not fun! So even if you don’t want to comply, it’s best to file a formal objection rather than just ignoring the subpoena.
What should I do if I’m subpoenaed to testify?
If you get a subpoena to testify at a deposition, hearing or trial, here are some tips:
- Mark the date in your calendar and clear your schedule. You could be asked to wait around for hours, so make sure you have no other plans.
- Review any documents about the case so your memory is fresh.
- Dress professionally as you would for court.
- Listen carefully and answer truthfully. Speculating or lying can get you in trouble!
- Bring any documents you’re asked to produce. You can comply with the subpoena on the spot.
- If you don’t understand a question, ask for clarification.
- Don’t be afraid to take your time and think before answering difficult questions.
- If you need to review records to answer accurately, say that. Don’t guess.
And remember – you can always consult with an attorney if you have concerns about the subpoena or aren’t sure how to respond to questions. The attorney who subpoenaed you isn’t allowed to give you legal advice.
What should I do if I’m subpoenaed for documents?
If you receive a federal subpoena to produce documents, here are some key steps:
- Notify the records custodian at your company or organization if needed.
- Gather the records requested and review to make sure they are complete.
- If any records may be privileged or confidential, seek legal advice.
- Organize the records and label them clearly.
- Make copies to produce – never hand over originals.
- If records don’t exist for the time period specified, provide a signed statement saying so.
You can often send the documents electronically or by mail. But some subpoenas require bringing them to a deposition or hearing. The subpoena should specify how and where to produce the records.
If compiling the records is too burdensome, you may be able to negotiate a rolling production schedule. This gives you more time to locate and review all the relevant documents.
Who pays the costs of complying?
That depends. If you’re a non-party witness being subpoenaed for a civil case, the party that issued the subpoena usually covers your reasonable costs. For example, search fees, photocopying costs, and mileage reimbursement. They may also pay you a witness fee for testifying.
But if you’re subpoenaed as a party to the case or a witness for the government, you typically bear your own costs. The court can protect you from having to spend unreasonable amounts to comply. But expect to absorb at least some of the expense.
Can I get help responding to a subpoena?
Yes! If you’ve been served with a federal subpoena, don’t panic. You have options:
- Contact the attorney who issued it – explain any concerns and try to resolve them.
- Hire your own attorney to advise you and draft objections or motions to quash if needed.
- Ask the court clerk for information on the case status or requirements.
- Request an extension of time to comply if you need more time.
And if you’re really confused about how to respond, ask the attorney who subpoenaed you for guidance. They have an ethical duty to avoid imposing undue burden or expense on you.
Federal subpoenas can seem scary, but understanding the process makes them much less intimidating. With the right legal advice and preparation, you can get through it smoothly. And you’ll have the satisfaction of knowing you did your civic duty by complying.