词源与由来: From Latin 'sub poena' meaning 'under penalty,' referring to the consequences of failing to comply with the court's command.
Subpoenas are used both during discovery and at trial. A trial subpoena compels a witness to appear at a specific date and time to testify. A deposition subpoena commands attendance at a deposition. A subpoena duces tecum requires production of specified documents or things. Under Rule 45, subpoenas must be issued from the court where the action is pending and may be served anywhere within the United States. The recipient may move to quash or modify the subpoena if it is unduly burdensome, seeks privileged information, or requires travel beyond the geographic limits specified by law. Attorneys have an obligation to avoid imposing undue burden on subpoenaed persons.
Attorney: "We issue a trial subpoena to Dr. Harrison requiring his appearance on October 15th at 9:00 AM to testify regarding his treatment of the plaintiff."
Non-party's counsel: "Your Honor, we move to quash this subpoena duces tecum. It demands production of five years of financial records that are entirely irrelevant to this personal injury action, and compliance would impose significant burden and expense on our client, a non-party."
Judge: "The witness is held in contempt for failing to comply with a lawful subpoena without filing a timely motion to quash. The witness shall be fined $500 per day until compliance."
Students often confuse a subpoena with a summons. A summons notifies a defendant of a lawsuit and commands an appearance; a subpoena compels a witness or document custodian to participate in litigation. Additionally, attorneys cannot subpoena privileged materials merely because they are relevant — privilege protections apply to subpoenas just as they do to other discovery devices.
Federal subpoena power under FRCP 45 is limited to 100 miles from the place of compliance. State subpoena reach varies — some compel attendance anywhere within the state, while interstate enforcement depends on the Uniform Interstate Depositions and Discovery Act (adopted in most states).
United States v. Nixon, 418 U.S. 683 (1974)
Held that executive privilege does not provide an absolute shield against a judicial subpoena in a criminal case.
Branzburg v. Hayes, 408 U.S. 665 (1972)
Held that the First Amendment does not provide journalists with a privilege to refuse compliance with grand jury subpoenas.
Trump v. Vance, 591 U.S. 786 (2020)
Held that a sitting President does not enjoy absolute immunity from a state grand jury subpoena for personal documents.
| Subpoena | Summons |
|---|---|
| Commands a witness or non-party to appear or produce documents | Notifies a defendant that a lawsuit has been filed |
| Issued during the course of litigation or investigation | Issued at the commencement of a lawsuit |
| Non-compliance can result in contempt of court | Non-compliance can result in default judgment |
| Directed at witnesses and third parties | Directed at defendants or respondents |
| Can be issued by attorneys or the court clerk | Issued by the court clerk upon filing of the complaint |
What is the difference between a subpoena ad testificandum and a subpoena duces tecum?
A subpoena ad testificandum commands a person to appear and give testimony. A subpoena duces tecum commands a person to produce documents, electronically stored information, or tangible things. A single subpoena may combine both commands.
How far can a federal subpoena require a person to travel?
Under Rule 45(c), a subpoena for trial testimony may require attendance within 100 miles of where the person resides, works, or regularly transacts business, or anywhere within the state if the person is a party or officer.
What are the grounds for quashing a subpoena?
Under Rule 45(d)(3), a court must quash or modify a subpoena that fails to allow reasonable time for compliance, requires travel beyond permitted limits, requires disclosure of privileged matter, or subjects a person to undue burden.
Discovery is the pretrial process by which parties obtain information and evidence from each other a...
A deposition is a form of discovery in which a witness gives sworn testimony outside of court, typic...
Privilege is a rule of evidence that protects certain communications from compelled disclosure in le...
Direct examination is the initial questioning of a witness by the party who called that witness to t...
