What Is a Subpoena? How It Works, How They're Used, and Types

Will Kenton is an expert on the economy and investing laws and regulations. He previously held senior editorial roles at Investopedia and Kapitall Wire and holds a MA in Economics from The New School for Social Research and Doctor of Philosophy in English literature from NYU.

Michael Boyle is an experienced financial professional with more than 10 years working with financial planning, derivatives, equities, fixed income, project management, and analytics.

What Is Subpoena?

A subpoena is a formal written order that requires a person to appear before a court or other legal proceedings (such as a Congressional hearing). The order is a demand to testify or produce documentation.

Key Takeaways

• A subpoena is a formal written order that requires a person to appear before a court, or other legal proceedings (such as a Congressional hearing), and testify, or produce documentation.
• Attorneys typically request subpoenas, which are issued by the court and served through mail, email, or personal delivery.
• A subpoena cannot be ignored as it is a court order and a failure to respond to it may be punishable as contempt of court.

Understanding Subpoenas

Essentially, a subpoena, which literally means 'under penalty', requires one to inform under oath (testify) on the facts that are at issue in a pending case. A subpoena is typically requested by an attorney on behalf of the court and issued by a court clerk, notary public or justice of the peace. A subpoena may be served on an individual either through personal delivery, email, certified mail or even by reading it out aloud. It is also called a writ or administrative summons. A subpoena cannot be ignored as it is a court order and a failure to respond to it may be punishable as contempt of court.

Criminal and civil attorneys use subpoenas to obtain information that may bolster their client’s case. If a witness is served with a subpoena but does not appear in court on the specified date, the attorney who had initiated the subpoena can ask for the court for an adjournment to another date to buy more time to contact the witness. Alternately, the attorney may request a warrant from the court to be issued for the witness’s arrest due to failure to appear in court.

Types of Subpoenas

There are three types of subpoenas:

1. A witness subpoena is a court order that requires someone to appear in court on a certain date and testify as a witness. The purpose of a witness subpoena is to ensure that relevant testimony is provided under oath, aiding in the fact-finding process and helping to establish the truth in a legal case.
2. A subpoena duces tecum is a court order that requires the subpoenaed individual to produce evidence such as documents or records at a specified time and place in a court hearing. This is usually part of the pre-trial discovery process. The Latin term "duces tecum" translates to "bring with you".
3. A deposition subpoena is a court order requiring a person who is a third-party—not a party to a lawsuit—to provide copies of records and/or appear at a deposition to answer questions asked by one of the parties involved in the lawsuit.

A subpoena is very specific to a situation. The requirement, expectation, and timing will vary from one ruling to anothe.r

What's in a Subpoena

A valid subpoena should include the following:

• The name of the court issuing the subpoena
• The name, address, and contact details of the attorney who initiated the subpoena
• The names of the parties involved
• The assigned case docket number

If you receive a subpoena, legal experts recommend double-checking the hearing date and time and rearranging your schedule to ensure you will be present, thereby avoiding a stiff penalty for failure to appear. It is also recommended that you know exactly what documents are required to be produced by the subpoena, and ensuring they are kept safe until the hearing.

Note that documents do not only mean paper documents, but also photographs, sound or video recordings, and information storage devices. If you are required to testify, experts advise that you determine who is requesting you to do so and why so that you are sufficiently prepared to provide testimony.

In business cases, legal experts recommend that the company served with a subpoena conduct adequate due diligence to determine the underlying lawsuit or proceeding from which the subpoena was issued. This information may reveal whether the subpoenaed company or one of its officers is the target of a criminal or civil investigation, or whether the company may be joined as a party to the lawsuit. Legal counsel may be necessary to ascertain the optimal way to respond to the subpoena.

Who Can Issue a Subpoena

There are several specific positions within the legal jurisdiction that are granted the power to issue a subpoena. These positions are:

• Judges and Magistrates: The primary authority for issuing subpoenas typically rests with judges or magistrates presiding over a case.
• Attorneys: In many jurisdictions, attorneys representing parties involved in a legal matter also possess the authority to issue subpoenas. Attorneys may issue subpoenas on behalf of their clients to compel witnesses to testify or to produce relevant documents.
• Administrative Agencies: Certain administrative agencies, such as government regulatory bodies or investigative commissions, may also have the authority to issue subpoenas. These subpoenas are typically used to gather information or testimony related to regulatory compliance.
• Clerks of Court: In some jurisdictions, clerks of court or court administrators may be empowered to issue subpoenas. This may be done for very niche, specific reasons such as summoning jurors.

Subpoena vs. Summons

In the legal world, both subpoenas and summonses are instruments used to compel individuals to take certain actions or appear in court. However, they serve distinct purposes. They're each used in specific, different contexts.

As we've already touched on, a subpoena is a legal document issued by a court to compel an individual to provide testimony or produce documents. A summons is also a legal document, but it's primary purpose is to let someone know they are being sued. A summons may also be used to let someone know they are required to appear in court as a part to a legal action.

Summons are typically issued at the initiation of a lawsuit to inform defendants of the claims against them. It's used as a communication tool to provide them with an opportunity to respond. Failure to respond to a summons may result in a default judgment being entered against the non-responsive party, whereas failure to reply to a subpoena may have more severe consequences.

You may have seen subpoenas in some context in life. For example, consider how the January 6 review committee issued a subpoena to former President Donald Trump.

Your Responsibilities With Subpoenas

If you're issued a subpoena, you have certain rights and responsibilities. When served with a subpoena, you have the right to understand the scope of the subpoena and your obligations under the law. This includes allowing you the right to seek legal counsel to determine the appropriate course of action. You also have the right to challenge the subpoena if there are valid grounds for objection.

One such ground for objection may be undue burden. Undue burden is the argument that the subpoena is too big of an ask for a variety of reasons. Another such right is the right to privilege which is legal protection in certain communications (such as doctor-patient privilege). A lawyer can offer advice tailored to your specific situation on the appropriate steps.

At the same time, compliance with a subpoena carries very different responsibilities. You are obligated to respond to a subpoena in a timely manner (usually communicated to you as part of the subpoena). As mentioned before, you may have to appear for a deposition, providing documents or records for inspection, or taking other actions as specified in the subpoena.

Consequences for Ignoring a Subpoenas

Ignoring or resisting a subpoena can have serious legal consequences. Subpoenas are legally binding orders. Failure to comply with a subpoena can result in various repercussions including:

• Contempt of Court: One of the most common consequences of ignoring or resisting a subpoena is being held in contempt of court. Contempt of court occurs when an individual willfully disobeys a court order. Contempt of court can result in fines, imprisonment, or other sanctions imposed by the court.
• Financial Penalties: People who ignore or resist subpoenas may be subject to financial penalties. These penalties could be a fine designed to compel compliance.
• Default Judgment: In civil litigation, failure to comply with a subpoena may result in a default judgment being entered against the non-compliant party. This is similar to what was mentioned earlier with summons and rulings in lawsuits; if you don't show up, the judge may simply rule against you.
• Additional Legal Costs: Ignoring a subpoena can lead to additional legal costs. The non-compliant party may be responsible for paying the opposing party's attorneys' fees and other expenses incurred as part of the enforcement of the subpoena.

How Is a Subpoena Served?

Subpoenas are typically served in person by a process server, sheriff's deputy, or another authorized individual. The recipient is handed the subpoena along with instructions for compliance.

What Happens If I Ignore a Subpoena?

Ignoring a subpoena can lead to legal consequences such as being held in contempt of court. This can result in fines, imprisonment, or other sanctions imposed by the court to compel compliance with the subpoena.

Can I Challenge a Subpoena?

Recipients of a subpoena have the right to challenge it if they believe there are valid grounds for objection. This could include asserting privilege over certain information, arguing that the subpoena is overly broad or burdensome, or contesting procedural defects in its issuance. If you want to challenge a subpoena, it's probably best to seek legal counsel.

How Do I Comply With a Subpoena?

Compliance with a subpoena involves responding to its directives in a timely manner and providing the requested testimony or evidence as specified. It's essential to carefully review the subpoena and follow its instructions to ensure full compliance as every subpoena will have a specific set of instructions.

The Bottom Line

A subpoena is a legal document issued by a court, attorney, or administrative agency that compels individuals to provide testimony or produce evidence relevant to a legal proceeding. It serves as a crucial tool in the discovery process, ensuring that all parties have access to pertinent information necessary for the resolution of legal disputes.