A subpoena is a formal, court-backed order that requires you to do one of two things: appear and give testimony, or produce documents and other records for use in a legal case. It is not a request you can ignore. A validly issued and served subpoena carries the authority of the court, and failing to respond can expose you to penalties including contempt. The good news is that you usually have more than one way to respond, and you have a defined window to do it.
This guide explains the types of subpoena, what your obligations are, how to respond, the deadlines involved, and when you should bring in a lawyer.
What is a subpoena?
A subpoena is a tool that parties to a lawsuit use to gather evidence, including from people and businesses who are not themselves parties to the case. In federal court, subpoenas are governed by Rule 45 of the Federal Rules of Civil Procedure, and every state has an equivalent rule for cases in its own courts. The word comes from Latin and roughly means "under penalty," which captures the point: there is a consequence for not complying.
Receiving a subpoena does not mean you are accused of anything. Often it means a lawyer believes you have information or documents relevant to a dispute between other people or companies. A witness to a car accident, a former employee, a bank, or a medical provider can all be subpoenaed precisely because they are neutral sources of evidence.
The two main types of subpoena
There are two basic kinds, and many subpoenas combine them:
- A subpoena ad testificandum, usually just called a subpoena to testify, commands you to appear and give testimony. That testimony might be at a deposition before trial, at a hearing, or at the trial itself.
- A subpoena duces tecum commands you to produce documents, electronically stored information, or tangible things. The Latin phrase means "bring with you." This is the type used to obtain records: emails, contracts, financial statements, personnel files, and the like.
A single document is often titled to do both, requiring you to appear at a deposition and to bring specified records with you. Read the subpoena carefully to see exactly what it asks for, because your obligations depend on which type you have received.
Who can issue a subpoena
People are sometimes surprised to learn that a subpoena does not have to come from a judge. In most civil cases, an attorney of record in the case can issue a subpoena as an officer of the court. Under Rule 45, the subpoena is issued from the court where the case is pending, but the lawyer fills it out and serves it. Court clerks can also issue subpoenas, and in criminal matters and grand jury proceedings, prosecutors have subpoena power as well.
What makes a subpoena valid is not who signed it but whether it was properly issued and served and whether it complies with the procedural rules, including limits on how far you can be required to travel and protections against undue burden. A document that looks like a subpoena but was not properly issued or served may not be enforceable, which is one reason it is worth having someone review it.
Your obligations when you receive a subpoena
When a valid subpoena arrives, you have a legal duty to respond. You generally have three options, and choosing among them is the heart of responding well:
- Comply. Show up to testify, or gather and produce the requested documents, by the date specified. If the subpoena is straightforward and asks for information you can reasonably provide, compliance is often the simplest path.
- Object. For a subpoena duces tecum, Rule 45 lets the recipient serve written objections, for example on the ground that the request is overly broad, seeks privileged material, or imposes an undue burden. A timely objection shifts the situation: the party who issued the subpoena must then ask the court to compel production before you have to hand anything over.
- Move to quash or modify. You can ask the court itself to cancel (quash) or narrow (modify) the subpoena. Courts must quash a subpoena that fails to allow a reasonable time to comply, requires excessive travel, demands privileged information, or subjects a person to undue burden. A motion to quash is filed with the court and decided by a judge.
You do not get to simply decide on your own that the subpoena is invalid and throw it away. If you believe it is improper, the rules give you a process to say so, and you have to use that process.
How to respond and meet the deadline
The subpoena states a date for compliance, whether that is the date to appear or the deadline to produce documents. Treat that date as a hard deadline and work backward from it.
Practical steps when a subpoena arrives:
- Read it immediately and note every date. The compliance date drives everything. Objections and motions to quash must generally be made before the date set for compliance, so waiting wastes the time you need.
- Preserve the requested material. Once you are on notice that documents are sought, do not delete or destroy them. Destroying evidence covered by a subpoena can lead to serious sanctions on top of the underlying penalties.
- Figure out what is actually being asked. Narrow, specific requests are easier to satisfy than sprawling ones. If the request is unclear or sweeping, that is often a sign to object or to seek a narrowing.
- Decide your path, and act in time. Comply, object, or move to quash, but make the choice before the deadline rather than after.
- Talk to the issuing lawyer if appropriate. Many subpoena disputes are resolved by a phone call. The lawyer who issued it may agree to extend the deadline or narrow the request rather than fight a motion.
What happens if I ignore a subpoena?
Ignoring a valid subpoena is a serious mistake. Because a subpoena carries the authority of the court, failing to respond without an adequate excuse can be treated as contempt of court. Under Rule 45, a court can hold a person who fails to obey a subpoena in contempt, and the consequences can include monetary fines, an order to pay the other side's attorney's fees, and in extreme cases even arrest to compel compliance.
Contempt is not the only risk. If you destroy documents you were ordered to produce, you can face additional sanctions for spoliation of evidence. And ignoring the subpoena does not make the demand go away. The party that wants your testimony or records can ask the court to compel you, which usually ends with you complying anyway, only now with penalties attached and a judge who is not inclined to give you the benefit of the doubt.
The key point is that disagreeing with a subpoena and ignoring it are completely different. The rules give you legitimate ways to push back. Silence is not one of them.
When to get a lawyer
You do not always need a lawyer to respond to a subpoena, especially a narrow request for records you can easily produce. But there are situations where getting advice is well worth it:
- The subpoena seeks privileged or confidential information, such as attorney-client communications, medical records, or trade secrets.
- Complying would be burdensome or expensive, for example requiring you to search years of files or large volumes of electronic data.
- You are connected to the underlying dispute in a way that could expose you to liability, or the testimony could be used against you.
- You believe the subpoena is improper and you are considering a motion to quash, which is a formal court filing best handled by counsel.
- The deadline is tight and you need help deciding quickly whether to comply, object, or move to quash.
Even a brief consultation can clarify your obligations and the cleanest way to satisfy them. The cost of a short conversation is almost always smaller than the cost of mishandling a court order.