Learn About Requesting Subpoenas in Court Cases

Understanding What a Subpoena Is and How It Works

A subpoena is a formal written order issued by a court that requires a person to do one of two things: testify in court or provide documents and evidence. The word "subpoena" comes from Latin and literally means "under penalty." This reflects the serious nature of the order—if someone receives a subpoena and ignores it without a valid legal reason, they can face contempt of court charges, fines, or even jail time.

There are two main types of subpoenas. A subpoena ad testificandum requires a person to appear in court and give testimony under oath. A subpoena duces tecum requires a person to produce specific documents, records, or physical evidence. For example, in a car accident case, a subpoena duces tecum might require the auto repair shop to turn over repair records, or the hospital to provide medical bills and treatment notes.

Subpoenas are used across many types of cases—criminal trials, civil lawsuits, depositions, and grand jury proceedings. According to the American Bar Association, subpoenas are issued in the majority of cases that go to trial, as they are essential tools for gathering evidence and witness testimony. In criminal cases, both the prosecution and defense can request subpoenas. In civil cases, either party can request them.

The person or entity that receives a subpoena is called the "recipient" or sometimes the "witness." The party requesting the subpoena is typically a lawyer representing one side of the case. Understanding this basic structure helps people know their rights and responsibilities if they ever receive one.

Practical Takeaway: A subpoena is a binding court order, not a request. Knowing the difference between the two types—testimony versus documents—helps you understand what is actually being asked of you if you receive one.

Who Can Request a Subpoena and When

In most court systems, both attorneys representing parties in a case can request subpoenas. This includes lawyers for the plaintiff (the person filing the lawsuit), the defendant (the person being sued), the prosecution (in criminal cases), and the defense (in criminal cases). In some situations, a person representing themselves in court without a lawyer—called "pro se" representation—may also be allowed to request a subpoena, though the specific rules vary by jurisdiction.

The timing of when a subpoena can be requested depends on the stage of the case. Subpoenas can be issued before a trial begins, often during a phase called "discovery," when both sides exchange information and evidence. They can also be issued during the actual trial or hearing. In criminal cases, a grand jury—a group of citizens who review evidence to determine if charges should be filed—can also request subpoenas.

The decision to request a subpoena is strategic. An attorney will typically request a subpoena when they need specific evidence or witness testimony that is important to their case. According to data from the Federal Judicial Center, about 60 to 70 percent of civil cases involve some form of discovery, and subpoenas are a key part of that process. The attorney must believe the information or testimony is relevant and necessary to prove their claims or defenses.

There are rules about who cannot be easily subpoenaed. For example, a judge cannot usually be subpoenaed in a case over which they are presiding. Certain professionals like doctors, lawyers, and priests may have legal protections called "privilege" that prevent them from disclosing certain information, even under subpoena. Additionally, some people, such as the President of the United States, may have immunity from subpoenas.

Practical Takeaway: Either side in a case can request a subpoena if they need evidence or testimony. The decision is made strategically based on what information a lawyer believes will help prove their case.

The Process of Requesting a Subpoena

The formal process for requesting a subpoena varies slightly depending on whether it is a federal court, state court, or local court, and whether the case is criminal or civil. However, the general steps are similar across most jurisdictions.

First, the attorney must prepare a document. In federal court, this is typically called a "Subpoena" and follows the format outlined in the Federal Rules of Civil Procedure (Rule 45) for civil cases or Federal Rules of Criminal Procedure (Rule 17) for criminal cases. In state courts, there are similar state-specific rules. The subpoena must include specific information: the name of the court, the case number, the names of the parties involved, the date the subpoena is to be served, the location where the person must appear or where documents must be sent, and a clear description of what testimony is needed or what documents must be produced.

Second, the attorney must file the subpoena with the court or, in some cases, simply sign it and have it issued. The rules about who issues the subpoena have changed in recent years. Under older rules, attorneys could issue subpoenas themselves. Current federal rules now require that subpoenas be issued by the court clerk in most situations, though there are exceptions. The attorney typically submits the subpoena to the clerk's office, and the clerk issues it with an official court seal and signature.

Third, the subpoena must be "served" on the recipient—meaning it must be delivered to them officially. This is usually done by a process server, a sheriff's deputy, or sometimes by certified mail. The person serving the subpoena must provide proof of service, which is filed with the court. This proves that the recipient actually received the legal document.

The subpoena must also include information about the person's rights and responsibilities. For example, it should state that failure to comply can result in contempt of court charges and explain any protections the person may have, such as the right to object to producing certain documents.

Practical Takeaway: Requesting a subpoena involves preparing a detailed document following specific court rules, filing it with the court or having it issued by the court clerk, and then having it officially served on the recipient. Each step must be completed correctly for the subpoena to be valid.

What Information Must Be Included in a Subpoena Request

A properly prepared subpoena must contain several key pieces of information to be valid and enforceable. Missing or incorrect information can lead to the subpoena being challenged or even dismissed.

The identifying information is essential. The subpoena must clearly state the name of the court where the case is being heard, the division or department if applicable, and the case number assigned by the court. It must also list the names of all parties to the case—the plaintiff and defendant in civil cases, or the prosecution and defendant in criminal cases. This information allows the court system to track and organize the subpoena correctly.

The subpoena must clearly identify the recipient—the person or entity being subpoenaed. For individuals, this includes their full name and current address. For businesses or organizations, it includes the official business name and the address where service should occur. If a specific person within an organization is being subpoenaed (for example, the records manager at a hospital), that person should be identified as well.

The time and place information is critical. The subpoena must specify the exact date, time, and location where the recipient must appear, or the deadline by which documents must be produced. The location must be reasonable—generally, a person cannot be required to travel more than 100 miles from their home or workplace without additional compensation, though federal courts have specific rules about this. The time must also be reasonable, typically allowing at least 14 days between service of the subpoena and the date the person must comply, though this can vary.

For document subpoenas, the request must describe with reasonable particularity what documents or records are needed. This means the description should be specific enough that the recipient knows exactly what to look for. For example, instead of requesting "all medical records," a proper subpoena might request "all medical records related to treatment of the plaintiff's back injury from January 1, 2023, to June 30, 2023." Vague requests can be challenged and may be modified by the court.

The subpoena must also include language about the recipient's rights and duties, including notice of any legal protections they may have and the penalties for non-compliance. Federal Rule of Civil Procedure 45 specifies exactly what language must be included.

Practical Takeaway: A subpoena must include the court and