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Drafting Federal Subpoenas: A Guide for Attorneys and Court Clerks
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Drafting Federal Subpoenas: A Guide for Attorneys and Court Clerks
Drafting effective federal subpoenas requires understanding the legal requirements, procedures, and best practices. This guide covers the essentials for attorneys and court clerks seeking to issue proper and enforceable federal subpoenas.
Overview of Federal Subpoenas
A federal subpoena is a writ ordering a person to appear at a specified time and place to give testimony and/or produce documents or other items relevant to a case. Federal subpoenas derive their authority from Federal Rule of Civil Procedure 45 and equivalent criminal procedural rules.To have legal effect, federal subpoenas must comply with all procedural and form requirements. Failure to adhere can lead to motions to quash for improper service, lack of jurisdiction, or undue burden on the subpoenaed person or entity.
Key Elements of Federal Subpoenas
Federal subpoenas contain several key elements:
Issuing Court
The subpoena must issue from the court where the underlying case is filed. For civil cases, this includes U.S. District Courts and U.S. Bankruptcy Courts. For criminal matters, appropriate issuing courts include U.S. District Courts, U.S. Courts of Appeals, and the U.S. Supreme Court.
Case Caption
The subpoena should include the complete case name and docket number to identify the matter. List all plaintiff and defendant names as they appear on the complaint.
Command Portion
This section should clearly state the date, time, location and manner for complying with the subpoena. Common commands include:
- Appear at a deposition, hearing or trial
- Produce designated documents, electronically stored information or tangible things
- Permit inspection of premises
An attorney authorized to practice in the issuing court must sign the subpoena. A party to a civil case may sign if unrepresented. For a criminal case subpoena, the court clerk or prosecuting attorney must sign.
Seal of the Issuing Court
All federal subpoenas must include the seal of the issuing court to demonstrate authenticity. Using the proper seal prevents challenges to validity.
Scope and Relevance
The subpoena scope must cover only evidence and testimony relevant to facts at issue in the underlying case. Overly broad or unduly burdensome subpoenas risk being quashed.
Geographic Limits
Unless allowed by court order, federal subpoenas can only compel compliance within:
- Attendance – 100 miles from where the subpoenaed person resides, is employed or regularly conducts business
- Production – 100 miles from where the subpoenaed person resides, is employed or regularly transacts business, or within the state where the person resides, is employed or regularly transacts business
Witness Fees and Mileage
For subpoenas to testify, you must tender an appropriate sum for witness fees and mileage reimbursement. The amounts vary but generally match the rate for attendance at U.S. District Court.
Form of Production
The subpoena must specify the appropriate manner for producing requested evidence. Common examples include:
- Paper documents produced as they are kept in the ordinary course of business
- Electronically stored information (ESI) produced on optical discs or portable drives in specified, discovery-appropriate formats
- Inspection at premises during normal business hours
Drafting Deposition Subpoenas
Noticing depositions via subpoena requires paying special attention to the command portion. Key details to include cover:Date and Start Time – List the deposition date and start time. Provide reasonable advance notice accounting for geographic and calendar conflicts. Courts seldom allow less than 10-14 days.Examination Method – Specify oral examination, not written questions.Location – Designate a place for the deposition convenient for the witness, generally within the geographic limits discussed above. Courts typically deem the witness’s home district most convenient.Production Requests – List specific documents to produce at the deposition with sufficient time to comply. Reasonable times vary by scope and volume.Applicable Rules – For civil cases, cite Federal Rule of Civil Procedure 30(b)(6) governing oral depositions. Criminal matters should cite Federal Rule of Criminal Procedure 17.Notice to Parties – Copies must go to all parties per Federal Rule 5(a).
Drafting Document and Tangible Item Subpoenas
Subpoenas seeking the production of documents, ESI and tangible items have additional requirements:Specificity – Describe each category of requested evidence with reasonable particularity. Overly vague or ambiguous specifications can lead to successful motions to quash.ESI Production – When subpoenaing ESI, we recommend specifying your preferred file formats for images, digital documents, email, databases and other common forms of ESI. Also consider requesting native files to obtain metadata.Privilege Review – Insert language allowing the subpoenaed entity to withhold privileged documents according to established procedures. This avoids privilege waiver arguments.Cost Shifting – If ESI production involves significant expense, address cost shifting to the requesting party per the “undue burden” limits of Rule 45.Timeframe – Provide a reasonable compliance deadline based on the volume and accessibility of documents requested. Courts disfavor unrealistically short deadlines.Place of Production – Specify production electronically or at an agreed location within the geographical limits.
Serving Federal Subpoenas Properly
To compel compliance, federal subpoenas must be served properly on the witness and other parties. See Federal Rule 45(b) for permissible manners of service. Common options include:
- Personal Service – Personal delivery to the named person. Have a process server deliver a copy directly to the intended recipient.
- Registered or Certified Mail – Mail requiring a signed receipt proves delivery. Send to the named person at their residence or place of employment.
- First-Class Mail – Regular first-class mail suffices when combined with other contact acknowledging receipt. Follow up by phone or email.
- Electronic Means – Emailing a copy works when the recipient consents or has designated an email address for service.
Enforcing Subpoenas
If a properly served subpoena meets resistance, several enforcement mechanisms exist, including:
- Contempt Motions – Failure to comply may prompt a civil contempt motion asking the court to order compliance and issue sanctions.
- Subpoena Enforcement Actions – A separate case against the defiant witness may get filed in the district court covering the area of non-compliance. Potential relief ranges from compliance orders to monetary contempt sanctions.
- Bench Warrants – For extreme cases, courts may issue a warrant directing U.S. Marshals to arrest a subpoenaed witness and bring them before the court for failure to comply.
Before pursuing enforcement mechanisms, though, we recommend meeting and conferring through telephone calls, correspondence, or in-person meetings. Openly discussing objections often reveals simple misunderstandings or logistical barriers behind non-compliance. Reasonable accommodations frequently resolve disputes without formal legal action.
Resources
For more help drafting and serving proper federal subpoenas, please consult the following additional resources: