I received a subpoena – what do I do now?

Man opening subpoena in VirginiaYou may have recently been told you will be subpoenaed or received a document called a subpoena or subpoena duces tecum.  If you have, this is an important legal document that may have substantial repercussions for you.  Any subpoena recipient should know what to expect.

Subpoenas vary in type.  The type of subpoena will determine what is required of the subpoena recipient.


Skip to the types of subpoenas and what they request +

It is not uncommon to think that a subpoena requires a recipient to testify in front of a jury during trial.  However, that is not the only type of proceeding for which a subpoena may be used. 

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Subpoenas of all types are burdensome on the recipient.  And because of this, there are specific rules that must be followed.

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Subpoena recipients face potential risks and costs.  What if you must travel out of state?  What if you must produce a huge number of documents?  Or worse, what if you must produce sensitive information about yourself or others?  To find out the possible concerns a subpoena recipient faces, learn about the potential legal exposure.

Types of Subpoenas

A subpoena can request one of three types of things:

  1. the recipient’s appearance at a proceeding;
  2. documents or other tangible evidence in the recipient’s possession; or
  3. the recipient’s appearance at a proceeding and production of tangible evidence.

In Virginia’s courts, a subpoena duces tecum requests documents or other tangible evidence.  What can be requested will vary from case to case.  A subpoena, on the other hand, may request only a recipient’s appearance or his appearance and production of tangible evidence at the proceeding.  It is important to carefully review any subpoena one may receive to ensure compliance and avoid these risks.

Types of Proceedings that can use Subpoenas

There are numerous types of proceedings for which a subpoena may be issued.  The rules governing each type of proceeding can differ.  The rules can also differ between jurisdictions, such as state and federal, and between different courts within Virginia, such as the General District, Juvenile and Domestic Relations District, and Circuit Courts. 

Subpoenas may be used in criminal or civil litigation as well as in administrative proceedings.  Administrative proceedings are subject to many specific regulations that are created by the administrative agency.  As such, the subpoena requirements and the scope of the subpoenas will depend on the agency’s regulations.

Civil and criminal cases culminate in a trial but consist of different pre-trial events as well.  Subpoenas can be issued for trial as well as the pre-trial events. 

There are two primary types of pre-trial events to which a person may be summoned: depositions or motions hearings.  In criminal proceedings only, a subpoena may also be issued to require the recipient to appear before a grand jury or produce tangible evidence for the grand jury’s review. 

Trial and pretrial subpoenas in Virginia state cases are governed by specific rules created by the legislature and Virginia Supreme Court.  Federal cases have their own rules for both criminal and civil cases.  These various layers of courts and jurisdictions create a complex web for lawyers and subpoena recipients to navigate.

If you have received a subpoena, you need to take it seriously.  Failure to comply with a subpoena can have substantial consequences for an individual.  Call us today to discuss your subpoena so you know how to respond and how to avoid negative consequences.

Issuance and Enforcement of Supboenas

Clerk/Judge

A court clerk or judge can issue a subpoena.  Certain subpoenas are routine, such as witness subpoenas in civil and criminal cases, and can be issued without any hearing or judge’s involvement.  Other types of subpoenas are not as routine and require special information or may be opposed.  In those instances, a judge may have to decide whether the subpoena will be issued.

Attorney

Attorneys can also issue certain types of subpoenas in civil cases and criminal cases.  An attorney-issued subpoena is typically on a form provided by the Virginia Supreme Court or a form approved by a local court.  Failure to comply with an attorney-issued subpoena has the same consequences as failing to comply with a court-issued subpoena. 

Timing of When Service Must Be Had

Depending on whether the subpoena is a witness subpoena or a subpoena duces tecum, different timing requirements apply.  Whether issued by a court or an attorney, a witness subpoena must be properly served on the recipient at least five days before the witness’s appearance is required.  Subpoenas duces tecum must be properly served on the recipient at least 14 days before the return date for the items subpoenaed. 

Who Must Be Served Notice

The recipient of the subpoena must receive proper service.  Service is a legal term that is defined by court rules and laws passed by the legislature.  Generally speaking, a sheriff or private process server can serve either type of subpoena that may be issued.  A private process server can be anyone over 18 years old who does not have an interest in the case in which they are serving the subpoena.  Private process servers also have to follow specific rules regarding the return of service, which could be used to prove proper service.

What can be requested and how can this be challenged

A subpoena can request the appearance of any person at any hearing where subpoena power is available.  A subpoena duces tecum can request any relevant evidence that is held by the recipient.  What is considered relevant can sometimes be difficult to determine.  Additionally, what is being requested may raise issues for the recipient.  Continue reading to learn what potential legal exposure a subpoena recipient can face.

If a subpoena recipient does not think they should have to respond to a subpoena, they have two options.  The first is to contact the attorney who issued the subpoena to discuss the recipient’s concerns.  If the attorney requesting the subpoena does not agree to change the scope of the subpoena or waive its enforcement, the only other option is to go before a judge.  To do so, the recipient must file a motion to quash the subpoena. 

We have experience with all types of subpoena-related issues.  Whether you need representation as a witness at a hearing or need to protect sensitive information, we can help.  Call us today.

Potential Legal Exposure for Subpoena Recipient

Failure to Comply

Failing to comply with a subpoena without challenging it properly can have serious consequences.  A judge or the issuing lawyer can request that a show cause or capias be issued. 

Noncompliant subpoena recipients who receive a “show cause” must appear on a certain date before a judge to explain the noncompliance.  If a judge orders a capias, then the sheriff or other law enforcement officers can arrest noncompliant recipients and bring them before the court to explain why they did not comply.  If in either case the explanation is insufficient, the judge can impose jail or other potential sanctions.   

Noncompliance with a subpoena of either type also gives the requesting party the option to request sanctions.  Those sanctions typically come in the form of forcing the noncompliant recipient into producing the documents or appearing at a hearing.  In addition, if the noncompliant party is at fault and without a good explanation, they can be ordered to pay the fees for the requesting party’s attorney.   

Self-incrimination & 5th Amendment

Even when complying with a subpoena, subpoena recipients potentially face self-incrimination issues.  Self-incrimination occurs when one’s own written or recorded statements tend to show the subpoena recipient was involved in some criminal activity.  There are many nuances to how and when an individual can assert their Fifth Amendment right to silence after being properly served with a subpoena. 

Privacy Concerns for Recipient

Occasionally subpoena recipients may be required to provide sensitive or embarrassing information about themselves.  If the information is overly personal and does not have a legitimate connection to the case, it can be challenged.  However, sometimes even sensitive information must be disclosed. 

Sensitive information can be protected by a “protective order.”  These types of protective orders typically allow only the parties, parties’ lawyers, and lawyers’ agents to access the information or have copies of it.  Protective orders are not always automatically in place, so it is important to consult with an attorney to determine whether sensitive information will be protected.

Financial Burdens and Rights

A subpoena recipient may also incur financial costs after receiving a subpoena.  For example, a subpoena recipient may have to produce a huge number of documents or travel to a distant court to testify.  Under those circumstances, the subpoena recipient may be entitled to receive some compensation for their travel to testify. 

Whether you’ve failed to comply with a subpoena, fear that your testimony or physical evidence will implicate you in a crime, or if the release of the information tends to be embarrassing or sensitive in nature, give our Fairfax law office a call right away at (703) 352-0100 to make sure you preserve your rights.

Mikhail N. Lopez
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Criminal Defense and General Civil Litigation Attorney
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