Published by A subpoena is a legally binding court order that compels testimony or document production, and ignoring one can result in civil contempt sanctions including substantial fines and, in some cases, incarceration until compliance. Under Federal Rule of Civil Procedure 45 and corresponding state rules, courts have broad authority to enforce subpoenas through contempt proceedings — meaning the burden falls on the recipient to either comply or formally challenge the subpoena through proper legal channels within strict deadlines.
While the term "subpoena" derives from Latin meaning "under penalty," the practical reality is that defiance constitutes contempt of court regardless of whether you received the subpoena directly or believe it's unfair, making prompt legal response essential to protect your rights and avoid escalating consequences.
Quick Summary
- Ignoring a subpoena can lead to severe consequences, including fines, contempt of court, or even jail time. Understanding your obligations is critical to avoiding these risks.
- Legally valid reasons to challenge a subpoena include improper service, undue burden from unreasonable demands, requests for privileged information, or filing a written objection to unfair requirements.
- Carefully review the subpoena, consult a lawyer to assess exemptions, and respond promptly to avoid escalation or additional penalties.
- Seek legal assistance if the subpoena requires excessive travel, demands confidential information, or seems unclear or improperly served. Acting quickly can protect your rights and mitigate risks.
What Is a Subpoena?
According to FindLaw, a subpoena is an official request for legal documents or one’s appearance in court. If you receive a subpoena and don't comply with its terms, you may get punishments like fines, jail time, or both [1]. Frequently, prosecutors are compelled to dismiss cases against criminal defendants because witnesses fail to appear.
The Purpose of a Subpoena
A subpoena is a court order that demands either testimony or specific documents. The word "subpoena" is Latin for "under penalty," meaning the person receiving the subpoena process must follow through with supplying information to the court or face a negative consequence.
Subpoenas are routine in a legal proceeding of a criminal case where witnesses may be more unwilling to show up. In a civil case, however, subpoenas are used to obtain documents that one of the parties doesn't have.
Types of Subpoenas
The court may serve two subpoenas on a person, as mentioned earlier. These requests demand different sorts of information from the individual in a court hearing. There are two types:
1. Subpoena ad testificandum
A subpoena to testify legally mandates that the person receiving it must appear and share any relevant information they have for the case. Oftentimes, this is done by testifying at trial in a criminal case. It can also include testifying at a deposition or conference before trial, where one party asks questions under oath from a witness. Sometimes a subpoena includes both, but it must consist of dates when testimony is necessary.
2. Subpoena duces tecum
The subpoena duces tecum demands that the recipient produce any documents specified in the subpoena. These documents include business records, medical records, notes, emails, and account statements.
The person who receives a subpoena for any legal document relevant to a lawsuit could often recover production costs, such as copying or shipping fees. This is more common because it is easier to get someone not involved with the case to hand over the documents requested by the court order.
Some people may want to avoid complying with a subpoena to testify in court, but they're often more resistant to comply when personally asked to testify in a court hearing. This is mainly because testifying at trial can feel like too much pressure. However, there are things a person should think about before trying to avoid a valid subpoena that could impact the party's interests.
4 Valid Reasons to Get Out of a Subpoena
Avoiding or ignoring a subpoena to testify in court as a witness is not advised and can be risky. Even if you go to court but don't want to answer questions, you can be charged with contempt of court and go to jail. However, there are some legal reasons why you should try to avoid one.
1. Avoidance
Avoidance involves attempts to evade being served with a subpoena, often by hiding or delaying the response.
Example: A witness avoids their home after hearing about the subpoena, thinking it will prevent service. Courts, however, can issue sanctions for such behavior.
Key Points to Remember:
- Courts have the authority to enforce compliance despite avoidance.
- Delay tactics often backfire and may lead to contempt charges.
Does It Apply: Only if you are a potential witness and not directly involved in the case. Courts require parties to comply regardless of avoidance efforts.
2. Objection
Objection allows you to formally contest the subpoena if it is irrelevant, overly broad, or demands privileged information.
Example: A company objects to a subpoena requesting five years of emails, arguing it is overly burdensome and irrelevant.
Key Points to Remember:
- File objections promptly to preserve your right to contest.
- Provide specific legal grounds for your objection, not just personal disagreement.
Does It Apply: When the subpoena is unreasonable, irrelevant, or violates legal protections like privilege.
3. Undue Burden
Undue burden occurs when compliance with a subpoena would cause significant hardship or disruption.
Example: A small business owner is subpoenaed to produce extensive records within three days, which would disrupt operations.
Key Points to Remember:
- Demonstrate how compliance imposes hardship with supporting evidence.
- Suggest reasonable alternatives to the court, such as extended deadlines.
Does It Apply: When compliance requires excessive time, resources, or travel beyond 100 miles.
4. Privileged Information
Privileged information includes legally protected communications, such as attorney-client or doctor-patient discussions.
Example: An attorney receives a subpoena for client communications and objects based on attorney-client privilege.
Key Points to Remember:
- Not all communications are privileged—only those made in confidence for professional advice.
- You must assert privilege explicitly; it is not automatically applied.
Does It Apply: When the information is confidential under legally recognized privileges.
Subpoenas to produce documents are more common than subpoenas to testify
- Adam Curley, attorney
Procedural Timelines and Motion Requirements
Challenging a subpoena requires strict adherence to procedural deadlines. Under Federal Rule of Civil Procedure 45(d)(2)(B), you have 14 days after service (or until the compliance date if sooner) to serve written objections to document production requests. For testimony subpoenas or to challenge the subpoena entirely, you must file a motion to quash or modify "promptly" — typically interpreted by courts as before the compliance date specified in the subpoena. Missing these deadlines can waive your right to object, leaving compliance as your only option.
The motion must be filed in the court for the district where compliance is required, not necessarily where the underlying case is pending. Your motion should state specific grounds — improper service, geographic burden (requiring travel beyond 100 miles from your residence or workplace), privileged information, undue burden, or insufficient time to comply. Courts may quash subpoenas that demand trade secrets, confidential research, or work product without showing substantial need. However, merely finding a subpoena inconvenient or burdensome isn't enough; you must demonstrate that compliance would impose unreasonable hardship relative to the value of the information sought. Consulting counsel immediately upon receiving a subpoena ensures you preserve all available defenses and meet critical deadlines.
3 Ways to Avoid a Subpoena
According to AdriTimes, there are various reasons a party could attempt to get out of testifying or providing documents in response to a subpoena [2]. However, an attorney can help you determine if there is a valid excuse for your particular situation.
Some examples of when this might be the case include:
- Service: A subpoena, similar to any other pleading, must be served on the recipient to be valid. This implies that it must be given to the person in a way that there is a probability they will receive it.
- Privilege: The attorney-client privilege and the self-incrimination immunity are two types of privilege that may work to lessen a subpoena. Though it likely will not eliminate the subpoena, it could limit what information is shared with law enforcement. The attorney-client privilege n is privileged when between a client and their lawyer.
- Jurisdiction: The term "jurisdiction" in legal terms refers to a court's power and authority to decide a case. This is quite a complicated concept, but it can affect how an individual handles their subpoena in two ways. First, the court that issued the subpoena may not technically have any because it lacks jurisdiction over the case.
Secondly, there might be reasons why the person receiving the subpoena can't be tried by that specific court– which would also mean that the same court has no jurisdiction. Grasping all of this information can be challenging, so it might be best to seek professional legal counsel if you're unsure.
FAQs
1. Can I refuse to testify if I get a subpoena?
No, you cannot refuse to testify if you get a subpoena. However, there are certain situations where a person may have a legal right to deny giving testimony. For example, if the person is married and their spouse refuses to waive spousal privilege, they cannot be forced to give testimony that would incriminate their spouse.
2. What are the risks of avoiding a subpoena?
The risks of avoiding a subpoena are punishment for contempt of court, which may include monetary sanctions or, in rare cases, imprisonment.
3. If the subpoena is directed to me personally, can someone else accept service on my behalf?
No one else can accept service on your behalf if the subpoena is directed to you personally. Every subpoena requires personal service by law.
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Do You Want to Get Out of a Subpoena?
If you want to get out of a subpoena, seek legal counsel and call Schmidt & Clark, LLP for your free consultation sessions. We have experienced lawyers to help you understand the best action to protect your rights. We will listen to your story and guide you through all the legal steps required so that you can make an informed decision.
Our attorneys are experienced in handling subpoenas and any associated litigation—we ensure that every single aspect is considered before taking any step forward.
References:
- https://www.findlaw.com/litigation/going-to-court/what-is-a-subpoena.html
- https://adrtimes.com/valid-reasons-to-get-out-of-a-subpoena/