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Colorado Subpoena Laws: Issuing, Serving & Your Rights in 2024

In Colorado, the rules governing subpoenas are contained in the Colorado Rules of Civil Procedure. This article will outline some key points regarding subpoenas in Colorado.
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What is a Subpoena?

According to Investopedia, in legal proceedings, a subpoena, derived from the Latin phrase ‘under penalty’, compels individuals to provide sworn testimony regarding pertinent facts in an ongoing case [1]. Typically initiated by an attorney acting on behalf of the court, subpoenas are issued by court clerks, notaries public, or justices 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 – Investopedia.

Both criminal and civil attorneys utilize subpoenas to gather information that may strengthen their client’s legal position. Should a subpoenaed witness fail to appear in court on the specified date, the attorney responsible for issuing the subpoena may petition the court for a postponement to allow additional time to reach the witness. Alternatively, they may seek a court-issued warrant for the witness’s arrest due to non-compliance with the subpoena.

Types of Subpoenas

There exist 3 distinct types of subpoenas within legal proceedings:

  1. Witness Subpoena: This form of subpoena mandates an individual to appear in court on a designated date and provide testimony as a witness. The objective of a witness subpoena is to ensure that pertinent testimony is presented under oath, thereby facilitating the fact-finding process and contributing to the establishment of truth within a legal case.
  2. Subpoena Duces Tecum: This court order compels the recipient to furnish evidence, such as documents or records, at a specified time and place during a court hearing. Typically integrated into the pre-trial discovery phase, the Latin phrase “duces tecum” translates to “bring with you,” underscoring the requirement to produce specific materials.
  3. Deposition Subpoena: Issued as a court order, this subpoena demands a third-party individual, not directly involved in the lawsuit, to provide copies of records and/or attend a deposition to answer questions posed by one of the litigants.

Can I Quash or Modify the Subpoena?

According to SCLG, individuals who receive subpoenas in Colorado state court possess the right to challenge the subpoena by filing a motion with the court to either quash or modify it [2].

The court will take action to quash or modify the subpoena under the following circumstances:

  • Inadequate Time for Compliance: If the subpoena fails to afford the witness a reasonable period to comply.
  • Inconvenient Deposition Location: If the subpoena compels the witness to attend a deposition in a county other than where they reside, work, or conduct business unless an alternative location is deemed convenient by court order.
  • Disclosure of Privileged Information: If the subpoena demands disclosure of privileged or otherwise protected information without proper exception or waiver.
  • Undue Burden: If the subpoena imposes an excessive burden on the witness.

Simultaneously, the judge holds the authority to quash or modify a subpoena under the following circumstances:

  • Disclosure of Confidential Information: If the witness’s testimony would reveal trade secrets or other confidential commercial information.
  • Unrequested Expert Testimony: If the subpoena requires an unretained expert to provide opinions or information beyond the scope of the dispute and not requested by any party.

In the event that either of the aforementioned scenarios arises, the judge may still enforce the subpoena if the issuing party demonstrates:

  • A substantial need for testimony or material that cannot be obtained through other means without undue hardship.
  • A commitment to reasonably compensate the subpoenaed individual.

If a subpoenaed party does suffer an undue burden, the court may impose sanctions – including attorney fees – on the issuing party.

If a Subpoena is Directed to Me, Can Someone Else Accept it on My Behalf?

A subpoena directed to a specific individual rather than an institution, such as a University, must be personally accepted by that individual.

However, there are three notable exceptions to this general rule:

  • Peace Officers: If the subpoenaed person is a peace officer, subpoenaed to testify about an event or transaction h/she witnessed or investigated as a peace officer, the subpoena may be served by delivering two (2) copies to the immediate superior or an agent designated to receive subpoenas, who must then deliver a copy to the peace officer.
  • State Employees: When a state employee is summoned to testify about matters they have specialized knowledge in due to their official duties, the subpoena may be served by delivering two copies to their immediate supervisor or an authorized agent designated to handle subpoenas. However, if the state employee is being subpoenaed for their firsthand knowledge of an incident, they must be personally served. For instance, a Human Resources employee subpoenaed to discuss internal procedures may be served through their supervisor, but if the same employee is summoned to testify about witnessing an on-campus accident, personal service is required.
  • Criminal Subpoenas: While not ideal, a criminal subpoena may be served via mail if the recipient willingly acknowledges receipt to the serving party and is willing to confirm their identity using specific details such as date of birth, driver’s license number, or DMV identification card. It’s important to note that disclosing personal information to third parties is generally discouraged.

In summary, while subpoenas typically require personal acceptance by the named individual, certain circumstances permit alternative methods of service as outlined above.

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References:

1. https://www.investopedia.com/terms/s/subpoena.asp
2. https://www.shouselaw.com/co/blog/colorado-subpoena-rules/

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