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A subpoena is defined as an order that requires a defendant to appear personally.  A subpoena is a command to appear at a certain time and place to give testimony upon a certain matter[i].  It is to be noted that the propriety of a subpoena is for a court to determine and not for the person served[ii].

The form of a subpoena may be prescribed by statute or by rule of court.  The rules governing civil and criminal procedure in federal court provide for the subpoena of witnesses and specify the form and requisites.  It is to be noted that some jurisdictions expressly place a duty upon the party or attorney issuing a subpoena to take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena[iii].

However, federal decisions inform courts that the duty to avoid undue burden or expense on a person subject to a subpoena exists in all situations and that the duty is higher when the subpoena is directed to a nonparty.  Moreover, the duty may require the party issuing the subpoena to pay any undue expense associated with complying with the subpoena, since non parties cannot be required to subsidize the cost of litigation[iv].

Generally, subpoenas tendered under the federal rules without witness fees or mileage allowances are considered to be invalid.  Under the federal rules, the court also may issue a subpoena for service of process upon a named witness, upon a satisfactory showing by a criminal defendant that s/he is unable to pay the fees of the witness; and the presence of the witness is necessary to an adequate defense.  Some jurisdictions declare that any person charged with a crime will be entitled to the use of subpoenas and other compulsory process to obtain the attendance of witnesses[v].

Generally, a party lacks standing to challenge the validity of a subpoena issued to a third party.  However, a party may establish standing if s/he demonstrates a personal stake in the outcome of the lawsuit and if s/he has sustained or is in immediate danger of sustaining some direct injury as a result of the conduct at issue.

Regarding the test for whether a subpoena is properly issued, the highest standard is applied to federal prosecutors who issue post-charge trial subpoenas in anticipation of trial.  Conversely, the lowest standard is reserved for federal grand jury subpoenas, issued pre-charge, which are presumed to be reasonable and pre-charge investigative subpoenas issued by administrative agencies[vi].

It is to be noted that a subpoena for documents can be quashed if their production is unreasonable or oppressive.  In order to require production prior to trial, the moving party must show[vii]:

  • That the documents are evidentiary and relevant;
  • That they are not otherwise procurable reasonably in advance of trial by exercise of due diligence;
  • That the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and
  • That the application is made in good faith and is not intended as a general fishing expedition.


Similarly, failure by any person without lawful excuse to obey a subpoena served upon him/her is considered contempt of court[viii].

[i] City of Sun Prairie v. Davis, 226 Wis. 2d 738 (Wis. 1999).

[ii] Application of Remy Sportswear, Inc., 16 Misc. 2d 407 (N.Y. Gen. Sess. 1959).

[iii] Young v. Macy, 2001 OK 4 (Okla. 2001).

[iv] Id.

[v] State v. Humphrey, 217 Kan. 352 (Kan. 1975).

[vi] Oman v. State, 737 N.E.2d 1131 (Ind. 2000).

[vii] United States v. Nixon, 418 U.S. 683 (U.S. 1974).

[viii] Application of Remy Sportswear, Inc., 16 Misc. 2d 407 (N.Y. Gen. Sess. 1959).

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