A subpoena is a writ which commands a witness to appear and (1) give testimony before a court or deposition, and/or (2) to produce items which are pertinent to and may be used as evidence within an ongoing legal matter. It is a way for litigants to ask third parties for evidence (either in the form of testimony, or, something which the third party has in their possession).

For the most part, subpoenas can only be filed within an ongoing suit, meaning they cannot be filed as a stand-alone matter if there is no ongoing lawsuit. (Texas and some other jurisdictions have a pre-suit deposition option under Texas Rules of Civil Procedure 202, but this a discussion for another time.)

A party who is not an attorney must have their subpoena confirmed by the Court prior to it being served. In other words, the party must file the subpoena with the Court and have the Judge sign off on it before it is served unto a witness. An attorney – as an officer of the court – has the ability to file a subpoena without the Court’s prior approval.

There are two primary types of subpoenas: (1) subpoena ad testificandum and (2) subpoena duces tecum. The subpoena ad testificandum is a type of subpoena which orders the individual to come and testify. In fact, the Latin translation equate roughly to “testimony under penalty.” There is no request to bring anything other than oneself to the date and time designated in the subpoena. This kind of subpoena is most commonly used for trial or in a deposition, when a party to the case wishes to have a third-party testify to facts which are pertinent to the case.

The subpoena duces tecum is a type of subpoena where the individual is ordered to come and bring items that are also designated in the subpoena. The Latin origin of the phrase translates roughly as “you will come under penalty and shall bring with you.” Usually, these items are records such as documents, books, recordings, and other such items. A subpoena duces tecum may requires the witness to testify as well, either to authenticate the documents to allow their use as evidence, and/or, about the facts of the case.

It should be noted that in Texas as well as some other jurisdictions, some parties tend to omit duces tecum or ad testificandum from the subpoena’s title, and simply call it a “Subpoena.” If that happens, the type of subpoena it is can easily be gleamed from its content, since it will either ask the subpoenaed party to bring something (meaning it is a subpoena duces tecum), or not (meaning it is then a subpoena ad testificandum).

Use of subpoenas may be divided into purposes – legal discovery or trial. In legal discovery, a party issues a subpoena as part of their legal discovery process. For example, in a deposition (which is a part of legal discovery), a subpoena ad testificandum may be used to order the witness to come and testify under oath. Alternatively, a witness may be served with a subpoena duces tecum, which (1) orders the witness to come and testify at a deposition and bring evidence, or (2) simply to appear at a location and provide documents requested (which are reviewed later and may be used by the party at trial as evidence). What also occurs often is that a subpoena duces tecum is issued which asks the individual to simply appear at a location and provide documents. The subpoena normally allows – and it is standard – to provide the individual with the option to simply send or drop off the documents at the location provided before the date designated in the subpoena. As such, many subpoenas duces tecum contain verbiage similar to the following: “The witness may comply with the subpoena by arranging production of the requested items prior to the appearance date.”

Furthermore, many subpoenas duces tecum contain the word “INSTANTER,” which is often included in the subpoena’s verbiage which gives the deadline to produce the documents requested. If this is the case, it simply means that the documents should be produced by the given deadline but can be produced earlier if possible.

If the subpoena is a trial subpoena, then the same rules apply for the most part. A subpoena orders the witness to come to Court on the trial date. There, they may be called by a party to the case to give testimony (subpoena ad testificandum) and/or to produce documents for evidence (subpoena duces tecum). Subpoenaed witnesses normally have to come back if the trial is not finished and reset for another day, unless they are specifically discharged by the Judge or the party issuing the subpoena. If and when the trial is reset, the mechanism to bind the witness to appear again is by asking the clerk of the court to swear the witness to reappear at a certain date.

It is not unusual for a witness to oppose (“challenge”) the subpoena for various purposes. Some fear the legal system, for some it is inconvenient, and others simply do not wish to get involved. The subpoenaed witness does have the ability to challenge a subpoena, although the Court makes the final decision as to whether or not to grant the witness relief.

Simply “not wanting to show up” is not enough to challenge the subpoena. Under Texas law, the following are recognized objections which can have the Court quash (i.e. invalidate) the subpoena:

    • The Texas Rules of Civil Procedure Rule 176.1 provide for the basic requirements of a subpoena. The subpoena must
      • be issued in the name of THE STATE OF TEXAS;
      • include the style and cause number of the lawsuit;
      • identify the Court where the lawsuit is pending;
      • state the date that the subpoena is issued;
      • clearly identify the witness for whom the subpoena is issued;
      • clearly state the date, time, and location of where the witness is to show;
      • identify the party issuing the subpoena (and as a practical matter, their counsel of record);
      • include the verbiage of Texas Rules of Civil Procedure R. 176.8 about contempt if the witness fails to follow the subpoena;
      • have a signature of the party issuing the subpoena; and
      • command the witness to attend and give testimony, provide items and other tangible things designated in the subpoena, or, both.
    • The Texas Rules of Civil Procedure Rule 176.3 and Texas Civil Practice and Remedies Code 22.002 limit the subpoena up to 150 miles from the county where the suit is. However, other law may expand that range depending on the circumstance.
    • Generally, a $10.00 fee per day should be attached to a subpoena which is served.
    • The Texas Rules of Civil Procedure Rule 176.7 and 192.6 provide that the subpoenaed party may try to defeat the subpoena based on the grounds that it requests information which is unduly burdensome or expensive, harassing, annoying, invasive or a protected right, or is privileged. For the most part (except for protected right and privilege), this is a more subjective attack on the subpoena than the aforementioned reasons.

The subpoena is presumed valid once served unto the individual. The subpoena may then be challenged by the other party in the case, the witness being subpoenaed, or any other party who is affected by the subpoena. The proper pleading to file is a Motion for Protective Order, from the idea that the party is asking the Court to “protect” one from the subpoena. In some cases, the pleading is called a Motion to Quash, although the technical difference between the two is so nuanced that most Courts do not bother making a distinction. The pleading may also be called something akin to Third Party’s Objection to Plaintiff’s Subpoena. Simply put, the vast majority of Courts generally do not make an issue out of actual the name of the pleading, provided that the content of the pleading itself is clear.

One’s opposition to the subpoena must be filed as soon as possible. It should be filed and set for consideration by the Court as soon as possible, and this all should be done before the actual deadline date in the subpoena. Otherwise, the ability to challenge the subpoena may be waived.

Not showing up when subpoenaed can have legal consequences. Aside from entering a writ which will have law enforcement find the person and bring them to Court, the Judge may impose a fine on a party which fails to show and may even imprison them at the Court’s discretion under contempt. The worst thing that someone can do is simply ignore a subpoena served unto them.