Responding to a subpoena

A subpoena is a legal document issued by a court, attorney, or government agency that compels a person to either testify as a witness or produce documents and records. The word comes from the Latin "sub poena," meaning "under penalty" — reflecting that failure to comply can result in serious legal consequences, including contempt of court, fines, and even jail time.

39 steps across 10 sections

1. Subpoena Ad Testificandum (Testimony)

  • Commands you to appear and testify at a specific time and place
  • Used in trials, hearings, depositions, and grand jury proceedings
  • You must appear in person unless otherwise instructed
  • Testimony is given under oath; lying constitutes perjury

2. Subpoena Duces Tecum (Documents/Records)

  • Commands you to produce documents, electronically stored information (ESI), or other tangible items
  • May or may not also require you to testify
  • Common requests include: business records, emails, financial documents, medical records, employment files, contracts, photographs, and digital files
  • You must produce all responsive documents within the scope of the subpoena

3. Deposition Subpoena

  • Commands you to appear at a deposition (out-of-court testimony under oath)
  • Typically used during the discovery phase of litigation before trial
  • A court reporter transcribes your testimony
  • Attorneys from both sides may ask questions

4. Grand Jury Subpoena

  • Issued by a grand jury investigating potential criminal activity
  • Can require testimony, documents, or both
  • Grand jury proceedings are secret — you generally cannot discuss your testimony
  • You still have Fifth Amendment rights against self-incrimination

5. Motion to Quash

  • A formal request to the court to cancel the subpoena entirely
  • Mandatory grounds for quashing (Federal Rule 45):
  • Fails to allow reasonable time for compliance
  • Requires travel beyond 100 miles from the person's residence or place of employment (federal court)
  • Requires disclosure of privileged or protected information
  • Subjects the person to undue burden
  • File promptly — typically within 14 days of service or before the compliance date, whichever is sooner
  • Include the subpoena, a memorandum of law explaining your grounds, and any supporting affidavits

6. Motion to Modify

  • Instead of quashing entirely, ask the court to narrow the scope (fewer documents, shorter time period, etc.)
  • Often more successful than a motion to quash because it shows good faith

7. Written Objections

  • In some jurisdictions, you can serve written objections to the subpoena on the requesting party
  • Must be served before the compliance deadline
  • Common objections: overly broad, unduly burdensome, seeks irrelevant information, seeks privileged information

8. Negotiation

  • Before filing motions, contact the issuing attorney to negotiate the scope or timing
  • Many disputes can be resolved informally, saving time and legal fees for all parties

9. Asserting Privilege

  • You must affirmatively assert privilege — it is not automatic
  • Prepare a privilege log identifying each withheld document, its date, author, recipients, and the specific privilege claimed
  • Simply refusing to comply without formally asserting privilege can result in contempt
  • The court may review disputed documents in camera (privately) to determine if privilege applies

10. How to Avoid Contempt

  • Respond to the subpoena by the deadline — even if only to object or negotiate
  • Never ignore a subpoena
  • If you cannot comply, file a motion to quash or for a protective order before the deadline
  • If you need more time, contact the issuing attorney and the court

Common Mistakes

  • Ignoring the subpoena
  • Destroying or hiding documents
  • Waiting until the deadline to act
  • Complying with an overly broad subpoena without objecting
  • Not asserting applicable privileges

Pro Tips

  • Consult an attorney immediately
  • Check for proper service
  • Document everything
  • Negotiate before litigating
  • Ask about your witness fee

Sources

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