Criminal Defense Lawyers

Does A Subpoena Have To Be Served In Person?

What is a Subpoena?

A subpoena is a legal document that commands you to either:

1. Testify as a witness at a hearing, trial, or deposition. Or…
2. Produce documents, records, or other evidence.

It’s essentially a court order. Ignoring a subpoena can get you held in contempt of court, which means fines or even jail time. So you can’t just toss it in the trash. There are a few different types of subpoenas:

• Subpoena Ad Testificandum: This requires you to show up and testify in person.
• Subpoena Duces Tecum: This requires you to produce documents or other evidence.
• Deposition Subpoena: This requires you to show up and testify under oath outside of court, before an actual trial.

The subpoena will specify exactly what you need to do. But the big question is, how do you get properly “served” with one of these things in the first place?

Do Subpoenas Have to Be Served in Person?

The short answer? It depends. In most cases, yes – subpoenas do have to be served in person for them to be valid and enforceable. But there are some exceptions depending on:

1. Whether it’s a federal or state subpoena.
2. What specific laws and rules apply in that jurisdiction.
3. What type of subpoena it is (e.g. for testimony vs. documents).

So let’s break it down…

Federal Judicial Subpoenas

In federal civil cases, Rule 45 of the Federal Rules of Civil Procedure governs subpoenas. And under Rule 45(b)(1), subpoenas must be served by “delivering a copy to the named person.”Most federal courts have interpreted this to mean in-person service is required. As the U.S. District Court for Maryland stated in Hall v. Sullivan:” The requirement of personal service is not an insignificant consideration…it alerts the person to the importance of the subpoena.”However, a few courts have allowed service by mail or commercial delivery in limited circumstances. But in general, you should assume in-person service is necessary for federal civil subpoenas. In federal criminal cases, Rule 17 of the Federal Rules of Criminal Procedure has similar language requiring personal service of subpoenas.

Federal Administrative Subpoenas

Administrative agencies like the SEC, FTC, IRS, etc. can also issue subpoenas during investigations. And the service rules vary by agency. For example, the SEC allows subpoenas to be served in person, by mail, by commercial carrier, by email, or even by fax if the recipient agrees in advance.But the IRS requires personal delivery of most summonses (their version of a subpoena). So again, it depends on the specific agency’s rules.

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State Subpoenas

At the state level, the rules on serving subpoenas get even more varied. Some states, like Texas and New York, allow subpoenas to be served by mail or commercial delivery in many cases.But other states, like California, still require personal service for most subpoenas – especially for testimony at trial.So if you receive a state subpoena, you’ll need to check the specific laws and rules in that state to see what’s required for proper service.The key point? While personal service is the “gold standard,” the rules aren’t always black and white. But in general, you should assume a subpoena needs to be hand-delivered to you directly unless the rules clearly allow another method.

What If I Wasn’t Properly Served?

If you have a good faith belief that you weren’t properly served with a subpoena under the applicable rules, you may be able to get it quashed or dismissed. For example, let’s say you get a federal subpoena in the mail, but the rules require in-person service. You would have grounds to file a motion to quash that subpoena for improper service. The court would then have to decide if the service method was valid. And if not, the subpoena wouldn’t be enforceable against you. However, don’t just ignore the subpoena based on a service issue. That’s a risky move that could backfire. Instead, you should:

1. Consult an experienced attorney about the service requirements in your jurisdiction.
2. If the service was improper, have your lawyer file a timely motion to quash.
3. If the court agrees the service was invalid, you’ll be off the hook for complying.
4. But if the court finds the service was proper, you’ll still have to comply with the subpoena.

The key is making sure you have a legitimate objection to the service method before trying to get out of the subpoena on those grounds. An experienced lawyer can review the specifics and let you know your options.

What If I Was Properly Served?

Okay, so let’s say you were properly served with the subpoena, whether in person or through a valid alternative method. Now what? Well, you can’t just ignore it. Failure to comply with a properly served subpoena can lead to civil or criminal contempt charges against you. The court has the power to impose fines or even jail time on someone who refuses to testify or produce documents after being validly subpoenaed.So at this point, you have three main options:

1. Comply fully with the subpoena by showing up to testify and/or producing all requested documents.
2. Comply partially by appearing but asserting legal objections to some requests.
3. File a motion to quash or modify the subpoena if you have valid legal grounds.

Let’s quickly go over each of those options…

Option 1: Full Compliance

If you don’t have any legal objections and can fully comply without undue burden, this may be the easiest path.You’ll need to carefully review the subpoena to understand exactly what you’re being asked to do. If it’s just showing up to testify on certain topics, you can prepare accordingly. If it’s producing documents, you’ll need to gather all responsive records from your files. Be sure to make copies, since you’ll need to turn over the originals. The subpoena will specify where and when to appear or produce materials. Be sure to follow those instructions exactly.

Option 2: Partial Compliance with Objections

In some cases, you may be able to comply with part of the subpoena but need to raise objections to other parts.For example, let’s say the subpoena asks for “all records relating to X” for the past 10 years. You may be able to produce records for the past 5 years without too much burden.But if producing a full 10 years’ worth would be extremely difficult and expensive, you could comply with the 5-year portion while objecting to the scope of the 10-year request. You’d make those objections on the record, either in writing beforehand or when appearing to testify or produce documents. The requesting party could then challenge your objections, but at least you’ve complied with what you consider reasonable.

Option 3: Motion to Quash or Modify

If you have specific legal grounds to object to all or part of the subpoena, you can file a motion to quash (cancel) or modify the subpoena with the court.Some valid grounds may include:

• The subpoena is overbroad in scope or requests irrelevant information.
• Complying would be unduly burdensome or expensive.
• The subpoena seeks privileged or confidential information.
• There was insufficient time provided to comply.

In your motion, you’d explain your objections and ask the court to quash or modify the subpoena requirements. The requesting party can oppose your motion, and the court would then have to decide how to proceed based on the arguments from both sides. If your motion is granted, you may not have to comply with all or part of the subpoena. But if it’s denied, you could face contempt charges for non-compliance. So as you can see, there are options besides just blindly accepting or rejecting a subpoena. But in most cases, you’ll need experienced legal counsel to raise objections properly and protect your rights.

What If I’m Not a Party to the Case?

One last scenario we need to cover – what if you receive a subpoena in a case where you have no direct involvement? In other words, you’re a total third party. This often happens when one party thinks you may have information or documents relevant to their lawsuit against someone else. As a non-party, you have even stronger grounds to object to unduly burdensome or irrelevant subpoena requests. The court rules tend to provide more protections for disinterested third parties. For example, under Rule 45(d)(1) of the Federal Rules of Civil Procedure:“A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”And Rule 45(d)(2)(B)(ii) says the court must protect a non-party from “significant expense resulting from compliance” with a subpoena. So if you’re a third party getting subpoenaed, you have a bit more leverage to negotiate the scope of requests or demand compensation for your time and costs in complying. The requesting party may be more willing to compromise rather than fight you on it, since you’re truly an disinterested outsider. Of course, that all assumes you handle it properly by raising timely objections through your attorney. You can’t just stiff-arm the subpoena entirely without consequences.But as a non-party, you have more rights to push back against unreasonable or overly burdensome requests.

What If I Need to Fight the Subpoena?

Okay, let’s say you or your attorney has reviewed the subpoena and you have legitimate reasons to object or resist complying with all or part of it. Maybe it’s overbroad in scope, seeks privileged information, or would simply be far too burdensome for you to gather all the requested materials.In that case, you’ll likely need to go through a formal “motion to quash or modify” process with the court that issued the subpoena. This requires carefully drafting a motion that lays out your specific objections and legal arguments for why the subpoena is improper or unreasonable. You’ll also need to be prepared to argue against the other side’s opposition to your motion. They’ll likely claim the subpoena is proper and within the court’s power.So it’s not just about firing off a letter objection. You’ll need to bring a formal motion and potentially attend hearings to get the subpoena quashed or modified by the court.This is where having an experienced attorney representing you is absolutely crucial. The rules and procedures around quashing subpoenas are very specific. You’ll need someone who has been through this process before and knows how to draft a persuasive motion, cite the proper legal authorities, and advocate effectively in court. It’s also an uphill battle to get a subpoena fully quashed by the court. More often, you may only get it modified or narrowed in scope through this process. But if you have valid objections, you absolutely need to go through the proper channels with an attorney rather than just blowing off the subpoena entirely.

What If It’s a Federal Grand Jury Subpoena?

One type of subpoena that has its own special rules is a federal grand jury subpoena. This is used when a grand jury is investigating potential crimes.With a grand jury subpoena, you may be required to:

• Testify before the grand jury
• Produce documents or other evidence related to the investigation
• Or both

These subpoenas are even more powerful than a typical subpoena issued in a civil lawsuit or by an administrative agency. That’s because they’re part of a criminal investigation by federal prosecutors. The rules around service of grand jury subpoenas can vary by jurisdiction. But in general, personal service by a federal agent or marshal is required.And the consequences for ignoring a grand jury subpoena can be very severe – including being held in contempt and jailed until you comply. So if you’re served with one of these subpoenas, you need to take it extremely seriously and have a criminal defense attorney advising you from the very start. There may be grounds to file a motion to quash or modify the subpoena. Or your lawyer may be able to negotiate the scope of your testimony or production. But whatever you do, don’t try to stonewall or ignore a federal grand jury subpoena. That’s a recipe for finding yourself in very hot water very quickly.

What If I’m Served By Mail or Email?

We’ve covered that in most cases, subpoenas need to be personally served by hand-delivery. But what if you just get one by mail or email? Well, in that scenario, you may have grounds to object to the subpoena on improper service grounds. But you can’t just ignore it or assume it’s invalid. If you receive a subpoena by mail or email, here are some steps you should take:

1. Consult your attorney immediately about the service method and requirements in your jurisdiction.
2. Have your attorney research whether that service method was actually allowed for that specific type of subpoena.
3. If not, have your attorney file a timely objection or motion to quash based on improper service.
4. But if the mail/email service was technically allowed, you may still have to comply unless you have other grounds to object.

The key point? Don’t just ignore it or assume it’s invalid. Take it seriously and have your lawyer review it right away.Because if you blow it off and the court finds the service method was proper, you could face contempt charges for non-compliance.So when in doubt, object through the proper legal channels rather than outright ignoring the subpoena. That’s the safest approach.

What If I’m Out of State?

Another tricky scenario – what if you get served with a subpoena from another state where you don’t live or do business? In general, a court in State A can’t just subpoena someone living and working in State B to show up for a hearing or trial in State A. That would exceed the court’s jurisdictional power. However, there is a process called the “Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings” that allows for out-of-state subpoenas in certain circumstances.It’s a model law that all 50 states have adopted in some form. The process involves:

1. A judge in the state where the case is pending issues a subpoena for an out-of-state witness.
2. That subpoena gets transferred to a court in the witness’s home state.
3. A judge in the home state then issues a new subpoena to compel the witness to testify or produce evidence.
4. But the witness only has to comply while physically present in their home state.

So for example, let’s say there’s a criminal trial in New York, and prosecutors want to subpoena a witness living in California. The NY court would issue a subpoena, which would get transferred to California. A CA court would then issue a new subpoena to the witness.But that witness would only have to testify or produce evidence while physically located in California – not travel to New York.The process gets even more complicated if the witness lives out of the country. But the key point is that courts in one state can’t just subpoena someone living across the country to show up in person. There are specific procedures that have to be followed for out-of-state subpoenas. And you may be able to object if those procedures weren’t properly followed.

What If I’m Subpoenaed as an Expert Witness?

In some cases, you may get subpoenaed not as a fact witness, but as an expert witness to provide opinion testimony at a trial or hearing. This often happens when you have specialized knowledge or expertise that could help the judge or jury understand complex issues in the case. For example, let’s say there’s a criminal trial involving some sophisticated financial fraud. Prosecutors may subpoena a forensic accounting expert to testify about accounting practices and whether the defendant’s conduct crossed any lines. Or in a personal injury case, the plaintiff’s lawyer may subpoena a medical expert to testify about the extent and causes of the plaintiff’s injuries.When you’re subpoenaed as an expert witness, the subpoena will typically require two things:

1. For you to produce a written expert report with your opinions and their bases ahead of time.
2. For you to appear and testify live at a trial or hearing.

As an expert, you’re allowed to not only testify about the facts, but also to provide opinions that could influence the case outcome. However, you’ll likely need to spend significant time reviewing case materials, conducting analyses, and drafting expert reports before testifying.