All About Federal Subpoenas
Federal rules authorize parties to seek subpoenas commanding
• the production of admissible evidence (documents, objects, electronically stored information, or tangible things), or
• the testimony of another person. See Fed.R.Civ.P. 45(a)(1)(C); 28 U.S.C. § 1783(a).
As a discovery device, a subpoena can be used to obtain access to information under the control of a third party for the moving party’s own benefit and independent of the litigation proceeding. See In re McGahn, 2019 WL 2128850, at *2 (5th Cir. 2019).
If issued improperly , a subpoena may be voidable or unenforceable. A court may also return such a subpoena where appropriate. See, e.g., McCoy v. Sw. Airlines, L.P., 211 F.R.D. 475, 477 (C.D. Cal. 2003); In re DocSys, Inc. , 90 F.App’x 272, 2004 WL 555245 (3d Cir. 2004).
A subpoena, including a federal subpoena, is a writ drafted by one party and directed to third parties which, depending on the exact language used, either divests the third-party of possession or control over a designated item or (occasionally) grants a limited power over it.
The Various Types of Federal Subpoenas
The two most common types of federal subpoenas are subpoenas ad testificandum and subpoenas duces tecum. Subpoenas ad testificandum are used to compel the testimony of a person who is not a party to the action while subpoenas duces tecum are used to compel the production of documents, materials or electronically stored information. If your subpoena is for both documents and testimony, your subpoena will be issued in one document and will include a list of documents to be produced and/or identified and a request to testify.
The District Court has the power to enforce a subpoena issued by a Clerk of Court or a judicial official. F.R.C.P. 45(d)(2) states that "a party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction … on a party or attorney who fails to comply."
The Federal Rules of Civil Procedure also require that the subpoena be served on the person to whom it is directed at least 14 days before the date of production, unless the subpoena is issued during an oral deposition. In that instance, the subpoena should be served on the witness when the deposition begins. Under certain circumstances, the 14-day requirement may be waived — these circumstances should be discussed with an attorney.
Service and Compliance With Subpoenas
As a general rule, subpoenas must be served on or before the date they specify for compliance. Courts have discretion to modify this requirement. For example, in a reciprocal discovery context where the parties have agreed to short time frames, courts have permitted a party to serve its interrogatories and document requests the same day they were due.
Subpoenas directed to non-parties may be served at home or working addresses as well as by email delivery. Of course, handwritten subpoenas are generally not acceptable. They must be issued by the court clerk and, in the case of deposition subpoenas, signed by a judge, clerk, or registered deputy.
Where to Serve a Subpoena and How to Comply
Parties may serve all manner of subpoenas on a non-party (i.e., non-advocates), including persons, corporations, associations, partnerships, governmental persons and entities, and state and local government agencies. Parties may not serve subpoenas on federal agencies or federal employees in their official capacities. Federal rules also limit subpoena service to the district of the court where the action is pending or, for non-party records subpoenas, "within 100 miles of the place specified for production." See Fed. R. Civ. P. 45(b).
Non-parties may also be subpoenaed through a "designated agent." This might include clerks for corporate groups, a third-party with the ability to access documents, or a lawyer who receives documents from another non-party.
Subpoenas must comply with Rule 45 if the documents requested are in the custody, possession, or control of a person. Judges may limit or quash a subpoena if it has not been properly served. Thus, a person who may be served an out-of-state subpoena but who has not been properly subpoenaed by a court with jurisdiction over them could move to quash the subpoena.
Subpoenas must be served at reasonable hours as made clear in a California case, Noble v. Superior Court, 165 Cal.App.4th 169, 178-80 (2008). In Noble, the California Court of Appeal held that a deposition subpoena served by fax at midnight on a Friday night violated the Civil Discovery Act ("CDA") provisions for reasonable notice. Id.; see California Civil Procedure 2020 Statutes Section 1985.3. Under the particular circumstances of the Noble case, a notice of deposition had to be served on or before 12:01 a.m. Sunday morning. Id. at 180. The CDA limits "reasonable notice" for the production of documents to 10 days if the response is due from a non-party. Id. (citing Code Civ. Proc., § 1985.3(b)(2) and 30(a)(6).)
Your Rights and Responsibilities Under A Federal Subpoena
Section 3 – Legal Rights and Obligations
The recipient of a federal grand jury subpoena is required to produce the requested material at the time and place specified in the subpoena, in accordance with Federal Rule of Criminal Procedure 17(c)(2). Moreover, Rule 17(c)(1) authorizes a federal grand jury to issue a subpoena. Unlike most subpoenas, which are issued only by litigants in civil cases, a federal grand jury is invested with the power to issue a subpoena on its own, because taking evidence is one of its functions. Federal grand juries have broad and sweeping investigative powers. The Supreme Court has held that a grand jury may require of an individual "whatever supporting records are necessary to make a preliminary evaluation of whether there is even a ‘sound basis in fact’ for the proceeding." United States v. Morton Salt Co., 364 U.S. 650, 655 (1961). As the Morton Salt Court noted, "[t]o require less would frustrate the very purpose for which the grand jury is convened, for in the typical investigation the witnesses may not themselves know the facts to which they are testifying." Id. at 656 (citation and internal quotation marks omitted).
The Morton Salt Court continued, "[a]lthough Rule 17(c)’s authorization of subpoenas is limited to ‘producing documentary evidence,’" it "has been frequently recognized that a subpoena duces tecum may be used to require pretrial production of documents." Id. at 656; see also United States v. Nixon, 418 U.S. 683, 699 & n.13 (1974). Rule 17(c) is applicable to grand jury subpoenas. United States v. Gil, 297 F.3d 1115, 1121 (9th Cir. 2002).
The Supreme Court has explained that "when the [subpoena] is unreasonable or oppressive . . . the court may quash or modify the subpoena so provided that the court, upon partial submission in camera of the material contained in the subpoena, and under appropriate conditions, may permit the defendant to show that grounds may exist for a motion to suppress evidence to be obtained pursuant to the subpoena." United States v. Nixon, 418 U.S. 683, 698 (1974). A defendant may file a motion to quash or modify a subpoena in criminal cases, but only if the subpoena seeks "privileged or other protected matter," or if compliance with the subpoena would be "unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2).
The "mere fact that compliance with the subpoena may cause inconvenience to the witness" does not constitute an unreasonable or oppressive burden as a result of the issuance of the subpoena. United States v. Akindele, 670 F. Supp. 2d 1368, 1372 (N.D. Ga. 2009); see also United States v. Richards, 59 F.3d 341, 345-46 (5th Cir. 1995) (noting that an "undue burden" means merely that the subpoena imposes a burden that is greater than the burden imposed by a normal subpoena that is served in the course of normal discovery in a civil action); United States v. George, No. M3-92-309, 1993 WL 19660, at *1 (D. Or. Jan. 20, 1993).
One possible defense against a subpoena may also be that it is overbroad, asking for material to which neither the grand jury nor the receiver of the subpoena have any connection. United States v. Fielding, 626 F.2d 142, 145 (5th Cir. 1980) (citation omitted). However, the standard for "overbroad" is relatively lenient, requiring only that the information sought has some nexus to the grand jury’s investigation. See United States v. Skeddle, No. 2:07-cr-00365, 2007 WL 328981, at *7 (D. Nev. Nov. 7, 2007) ("If the grand jury properly may investigate the offense under investigation, it properly may require the production of records or documents which have some nexus to the offense under investigation.") (citations and internal quotation marks omitted).
The Supreme Court has indicated, however, that a grand jury may not compel production that is "offense related to the particular offenses in question." United States v. Cavanagh, 550 F.2d 735, 738 (9th Cir. 1977) (citations omitted).
Ultimately, when recipients of federal grand jury subpoenas choose to comply, they waive a number of other rights. Because a grand jury is a fact finding body, any incriminating information that it receives may be passed on to federal prosecutors, who may then use the evidence in criminal proceedings. Furthermore, any incriminating evidence offered could be used directly against the subpoena recipient in a prosecution. 20 Wright, Federal Practice and Procedure: Evidence § 5035 (2d ed. 2018). Indeed, the Supreme Court has long recognized that the grand jury "is not bound by the rules of the judge presiding in the courtroom where the grand jury sits." United States v. Dionisio, 410 U.S. 1, 13 (1973); see also Branzburg v. Hayes, 408 U.S. 665, 688 (1972). In fact, the prosecutor uses the testimony of witnesses before the grand jury to decide whether other witnesses should be subpoenaed, or whether to file charges.
Both the procedure and the results of complying with a federal grand jury subpoena are severe and serious. The stakes are often high and far-reaching. Recipients of subpoenas should seek skilled legal counsel to advise them regarding their legal rights and obligations.
How to Challenge a Federal Subpoena
Challenging a federal subpoena is a complex process that falls under several doctrines, as well as court rules and statutes. Subpoenas are usually complied with, but parties are permitted to object under four conditions.
Under Federal Rule of Civil Procedure 45, objections must be made in writing within fourteen (14) days of the subpoena’s issuance or before the time specified for compliance. The motion to quash or modify a subpoena may be moved before compliance or production is required. Thus, courts retain broad discretion to rule on these motions prior to compliance.
The first step is to draft a written objection to the subpoena itself – these objections may be based on relevance, overbreadth, undue burden, vagueness, confidentiality, or privilege.
Confidentiality – Courts in the Second, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits all recognize a "well-established common law right to assert a claim of confidentiality" that protects confidential documents from disclosure when a subpoena is issued. Even with a confidentiality agreement in place between the party issuing the subpoena and the party/entity the subpoena is directed to, this alone is not sufficient to limit the disclosure of confidential documents. A prior agreement may be relevant to any challenge of a subpoena. However, there also must be an independent showing that the objecting party has a strong interest and a compelling need to protect information from disclosure, and that no less restrictive means exists to accomplish the same purpose without needlessly invading the interests of another party.
Compelling Need – While the Federal Rules provide that "[a] party or an officer for whom a subpoena was issued may move to quash or modify the subpoena if the subpoena requires." And the "party or the attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena" [FRCP 45(d)(1)] , there are situations where there is a compelling need and an overriding public interest in the production of documents.
Relevance – There are also hurdles regarding relevance – federal courts have long held that relevancy is not boundless, and that a subpoena "cannot simply be justified by the inference that an individual may have information germane to other issues in the case." A "challenge to relevance should be considered in light of the liberal discovery regime established by the Federal Rules of Civil Procedure." In securities fraud actions, for instance, courts have held that although the plaintiff’s right of discovery into the financial condition of the defendant’s business is broadly construed, the discovery sought must be relevant to the defense of the action. Similar holdings apply to claims of attorney-client privilege.
Additionally, its possible for a party to file a motion for a protective order under FRCP 26 if the requested discovery is objectionable. This can include, for instance, if the information requested seeks confidential information, is overly broad, burdensome, and/or irrelevant.
Such challenges and motions can and should be used to test the validity of several types of subpoenas, such as subpoenas for the disclosure of non-party records, to prevent the issuance of pre-emptive or premature subpoenas, and to challenge a subpoena based on status as a non-party. A motion to quash a subpoena in federal court is a request to invalidate or nullify the subpoena.
As mentioned above, a subpoena in federal civil court is governed by FRCP 45. Federal courts have broad authority to issue a subpoena to compel and enforce. Failure to comply with a subpoena exposes someone to sanctions, which can include contempt of court and dismissal of claims and defenses.
What Happens If You Ignore a Federal Subpoena
Unless a federal subpoena is quashed, the subpoena commands you to produce certain documents or appear and testify at a deposition, hearing or trial. If you fail to do so, you may face serious legal consequences.
Federal Rule of Criminal Procedure 17(g) provides: "A defiance of a subpoena, served upon a person pursuant to the provisions of this rule, shall be deemed as contempt of the court by which the subpoena has been issued." Although the rule speaks to contempt, contempt only lies where the party has failed to obey a valid subpoena duly served upon him. But even if a federal district court does not hold you in contempt, the court may rule that you can be forced to comply with the subpoena, and it will order you to do so. But there are exceptions to the rule which I’ll discuss below.
A person who does not obey a subpoena served upon him for the production of documentary materials may be held in contempt of the issuing court "if the simple exaction of the subpoena has been unfairly burdensome." In evaluating what constitutes an arbitrary burden, courts have considered the nature of the documents, their location, accessibility, and cost of production. A court may decide that a subpoena has been unfairly burdensome where it would require the subpoenaed party to comb "through thousands of pages of documents" or "wade through a mass of papers in order to produce the requested documents."
In U.S. v. Nixon, the United States Supreme Court held that the President of the United States has absolute, unqualified, and presidentially unreviewable authority to disclose documents that he claims to be privileged. Such a claim, however, if rejected by the court, may render the president liable for subsequent failure to comply with the court’s order. If the President, or anyone for matter, fails to comply with a properly issued and served subpoena, absent a privilege or the court’s order quashing the subpoena, it may be held in contempt of court which could potentially result in a fine or imprisonment or could be subject to the court’s enforcement.
Other remedies include: (1) the court may strike non-compliant party’s pleadings or claims; (2) the court may direct the jury to presume that the evidence not produced would be adverse to the person failing to provide it; (3) the court may prohibit the party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; or (4) the court may issue a final order requiring compliance with the subpoena and a finding of contempt.
Final Thoughts and Tips
In this article, we’ve explored the rules that govern federal subpoenas, including the ability to issue such subpoenas for testimony or documents, the process for enforcing a subpoena, foreign entity compliance obligations, and the ability to quash or modify a subpoena. We’ve also discussed the process, limitations, and jurisdictional considerations behind obtaining a subpoena.
The federal laws that apply to subpoenas and the related rules of criminal and civil procedure are complicated and diverse. This overview is not intended to serve as a legal opinion , but rather as a guide to help understand the basics of subpoenas and provide an overview of when to seek legal advice. Because of the complexity of federal subpoenas, it is important to treat them with the utmost seriousness and respond properly and in a timely fashion. If you think that you may be subject to a subpoena, or if you have already received one, you should seek legal advice immediately.