What to Do When Served a Subpoena

One of the most powerful and effective tools a lawyer has in his arsenal of legal tactics is the subpoena.

It is a little piece of paper that forces you to come and testify.

Our courts could not function effectively without subpoenas--because without witnesses there would be no way to determine truth--but if you happen to be the person on the receiving end, a subpoena to testify at a trial or in a deposition can ruin your day.

‘Commanded’ by Law

In Latin, subpoena means “under penalty,” and that is exactly what will happen to you if you don’t comply with its demand--you’ll be held in contempt of court. Black’s Law Dictionary is pretty blunt: The subpoena commands the witness to “lay aside all pretenses and excuses and appear before” the court at the date and time indicated.

It gets worse. If you happen to be served with a subpoena duces tecum (pronounced supEEnah DOOches TAKEem), you are required to turn over for inspection and copying the documents named in the subpoena, even your personal records.

Being served with a subpoena does not mean you have been sued. When you are sued, you are served with a summons. The summons requires you to answer the legal complaint filed against you within a certain period of time. A subpoena simply requires you to appear and testify at a hearing, a deposition or some other judicial proceeding. In most cases, you’re simply a witness needed to describe what you saw or heard.

When you are being sued, if a process server can’t find you in person, there are ways he can serve you with the summons by mail. But you cannot be served with a subpoena by mail. Personal delivery is required. Leaving the subpoena in your mailbox or at your office receptionist’s desk is not good enough.

There are procedural safeguards to protect you and your records. It doesn’t have to be as painful as it sounds. You can even get paid. If you demand it, in a state civil case, you must be given a witness fee and payment for your travel to and from court. The standard fee is $35 per day and 20 cents a mile. (The fee is discretionary in criminal cases.)

You also must be served with the subpoena early enough to allow a reasonable time for preparation and travel. If the subpoena is of the duces tecum variety and demands that you produce documents, the lawyer must attach a statement signed under penalty of perjury showing valid reasons why your documents are relevant and material to the case. For instance, if you were a passenger in a car in an accident, your testimony might be relevant, but your personal school records would not be.

In most cases, the best advice after you’ve been served with a subpoena is to call the lawyer listed at the bottom--the person who got you into this--and try to cooperate. If the date and time is inconvenient, he or she may be able to reschedule. Or perhaps the lawyer can place you on 24-hour call, because often you will not be needed to testify on the date specified in the subpoena. If the request for documents is too broad and will be a burden to you, maybe he will agree to narrow it. And if you’re asked to testify about something relating to your work, you should probably tell your employer about it.

But if your testimony is unnecessary, if the subpoena is deficient or improperly served or you just don’t want some lawyer indiscriminately rummaging through your files, hire your own lawyer to file what is called a motion to quash. (I’ve always wanted to call it a motion to squash, because that’s what happens if you’re successful: The subpoena is smashed up and disappears.)

More often than not, the subpoenas that call for the production of documents are not served on consumers but on institutions--hospitals, banks or schools. But the Legislature has established a system to allow you to protect your records at some of those places, if you’re prompt.

Under Section 1985.3 of the Code of Civil Procedure, passed in 1980, lawyers are required to give notice to consumers any time they subpoena their records from certain places--doctors, hospitals, banks and credit unions to name a few. (Check the statute itself for a complete list.)

The notice describes the documents and warns that if you don’t want the documents turned over, you must file papers with the court prior to the due date for the documents specified on the subpoena. To be sure that the institution doesn’t inadvertently produce the documents before you get to court, you should call and warn them that you plan to formally object.