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
- Rule 45 - Subpoena, Federal Rules of Civil Procedure - Cornell LII
- Rule 17 - Subpoena, Federal Rules of Criminal Procedure - Cornell LII
- Subpoena - Wex Legal Dictionary - Cornell LII
- Responding to a Subpoena - Cozen O'Connor (PDF)
- Motion to Quash: Protecting Yourself Against Improper Subpoenas - Legal Husk
- How to File a Motion to Quash a Subpoena - The Legal Guide
- Subpoena FAQs - UC Berkeley Office of the Chancellor
- What is a Subpoena? - Oregon State Bar
- Subpoena - Wikipedia
- Can a Grand Jury Subpoena Be Challenged? - NYC Criminal Attorneys
- Protecting Privileged Information - TLC Texas