The Ins and Outs of Federal Subpoenas

The Ins and Outs of Federal Subpoenas

Getting a subpoena can be, like, super intimidating. What even are they? This article will give you the lowdown on federal subpoenas—what they are, how they work, and what your options are if you get one.

What is a subpoena?

A subpoena is basically a court order that requires you to provide information or show up somewhere to testify. There are a few different types:

• A subpoena to testify at a deposition or hearing
• A subpoena to produce documents or physical evidence
• A subpoena to allow inspection of your property

Subpoenas are used in both civil and criminal cases. They are an important tool for gathering evidence during an investigation or leading up to a trial.

Where do subpoenas come from?

Federal subpoenas are issued by the court where the case is filed. But here’s the weird part—the court doesn’t actually write up or serve the subpoena. That’s done by the lawyers or government agencies involved in the case. For example, if the FBI is investigating you, they can just fill out a subpoena form and serve it to you without even going before a judge. Pretty crazy right?

Since 1948, they [subpoenas] have been issued in blank by the clerk of any federal court to any lawyer, the clerk serving as stationer to the bar. In allowing counsel to issue the subpoena, the rule is merely a recognition of present reality…. [1]

The court’s role is basically just to provide the blank subpoena forms to whoever asks for them.

What needs to be included in a subpoena?

There are a few key things that must be in every federal subpoena for it to be valid:

• The name of the court where the case is filed
• The case name and number
• Who the subpoena is commanding (you!) and what you’re supposed to provide or where you need to testify
• The signature of the lawyer or officer issuing it
• Contact info for the issuing party
• The date by which you need to comply

Here’s an example of what a typical subpoena looks like:

As you can see, it’s got the court name and case info up top, then lays out what exactly you’re required to do. Pretty straightforward.

How are subpoenas served?

For a subpoena to be valid, you have to be properly served with it. This usually means someone handing it directly to you or leaving it at your home or office. The rules vary a bit by state, but generally someone over 18 who is not involved in the case can serve the subpoena. It can’t just be tossed in your mailbox or emailed to you.

If you are served a subpoena, the server has to provide a “witness fee” to cover your travel costs and compensation for taking time off work. This is usually around $40. Not exactly gonna make you rich, but it helps a little!

How far can a subpoena reach?

Here’s where things get really crazy—federal subpoenas can be served anywhere in the United States! Let’s say there’s a court case going on in Florida. The lawyers or investigators on the case can ask the court clerk for blank subpoenas, then send those forms anywhere in the country and demand information or testimony. Wild right?

In authorizing attorneys to issue subpoenas from distant courts, the amended rule effectively authorizes service of a subpoena anywhere in the United States by an attorney admitted to practice in the issuing court. [1]

There are some limits though. The subpoena can only require you to travel within 100 miles of where you live or work. And it’s supposed to avoid causing you “undue burden or expense” in complying.

When can the government issue subpoenas?

Government agencies like the FBI, IRS, or SEC have a lot of power when it comes to subpoenas. Unlike in a civil court case between private parties, the government doesn’t need to file charges or go before a judge to get subpoenas. An agency can issue subpoenas whenever they are conducting an investigation that could lead to civil or criminal proceedings.

In allowing counsel to issue the subpoena, the rule is merely a recognition of present reality…. 322 (1957), the Court approved as established practice the issuance of administrative subpoenas as a matter of absolute agency right. And in NLRB v. Warren Co., 350 U.S. 107 (1955), the Court held that the lower court had no discretion to withhold sanctions against a contemnor who violated such subpoenas. [1]

So if you find yourself on the receiving end of an agency subpoena, know that they don’t need to prove anything to a judge first. The subpoena itself just needs to meet the requirements outlined earlier.

What are my options if I’m served with a subpoena?

Okay, so you got a subpoena from the federal government or lawyers in a civil case. Don’t panic! You have options here. Let’s walk through how you can respond:

Comply

If the subpoena seems reasonable and you don’t have anything to hide, complying is probably the easiest route. Make sure to keep careful track of what documents or evidence you hand over, and get receipts for any physical items. You may also want to request a copy of the complete case file, since you’re now involved.

Negotiate

If there are portions of the subpoena you think are unreasonable or overly burdensome, you can try negotiating with the issuing party. For example, if they are requesting “all communications between you and Bob from January 2018 to now” but you talk to Bob every day, you could ask them to narrow the date range or search terms. Most lawyers will work with you on good faith negotiations.

File a motion to quash

If you believe the entire subpoena is invalid or unenforceable, you can challenge it by filing a motion to quash with the court. This asks the judge to cancel the subpoena so you don’t have to comply. Grounds for quashing include things like improper service, requesting privileged information, or imposing undue burden. If you ignore the subpoena without filing a motion to quash, you could be found in contempt of court.

Challenges to a Federal Civil Subpoena… While complying with any subpoena can be labor-intensive, Federal Rule of Civil Procedure 45 prevents the issuing party from imposing an “undue burden” on the subject of the subpoena. This most often arises in the context of “document only” subpoenas in which the issuing party is not requiring the subject’s presence…. However, on the other hand, you do have the right to file a motion to quash the subpoena if you believe it imposes an undue burden. [6]

Assert a privilege

If the subpoena asks for information you believe to be confidential or privileged, you may be able to refuse disclosure. Common privileges include attorney-client privilege, doctor-patient privilege, or Fifth Amendment privilege against self-incrimination. Privilege claims should be raised in a motion to quash or protective order.

Request a protective order

If you can’t quash the entire subpoena but still have concerns about certain sensitive information, you can ask the court for a protective order. This allows you to produce documents or testify subject to certain restrictions—for example, requiring redactions or limiting who can access the information. The court will grant a protective order if it decides the privacy interests outweigh the need for disclosure.

What happens if I ignore a subpoena?

It’s generally a bad idea to just ignore a federal subpoena. Here’s what could happen:

• The court could hold you in contempt, which can result in fines or even jail time.
• Law enforcement could get a warrant to search your home or office for the information.
• In a civil case, the court may rule against you or impose sanctions like monetary penalties.
• In a criminal case, the prosecutor could file obstruction of justice charges against you.

So while it may be tempting to stick your head in the sand, it’s really important to take any subpoena seriously and respond promptly. Talk to a lawyer right away if you need guidance on your options.

Finding help

Dealing with a federal subpoena is no fun, but you don’t have to go it alone. Here are some options for finding help:

• Contact a civil liberties group like ACLU or Electronic Frontier Foundation
• Hire a lawyer experienced with federal cases
• If it’s from the IRS or SEC, talk to a lawyer who specializes in those agencies
• Ask the issuing party for more information on the case and their expectations
• Request assistance from the court clerk’s office on your rights and options

Having an expert on your side can really ease the stress. They’ll know all the rules and procedures, help negotiate with the other side, and make sure you don’t get taken advantage of.

The takeaway

While federal subpoenas can feel scary and intrusive, understanding how they work takes away some of their power. You always have options like negotiating or challenging the subpoena in court. With the right help and approach, you can get through it!