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A subpoena is a written order commanding a person to appear in court. Before a subpoena can be delivered to a witness, it must be requested. In the United States, a person can usually request a subpoena in person or through the mail. It can also be requested by an attorney who represents one of the parties in the case.
When filing a subpoena request, the attorney usually prepares either a subpoena ad testificandum, which orders a witness to testify, or a subpoena duces tecum, which commands a witness to appear and bring specific documentation with them. Most courts require that the subpoena be sent or delivered to the trial court clerk's office for signature. After the clerk of courts signs and issues the subpoena, it is typically forwarded back to the requester, who arranges for service upon the witness. In some jurisdictions, an attorney, as an officer of the court, can also sign and issue a subpoena request.
An attorney usually prepares the subpoena request according to a court's standard format. Most subpoenas contain the name of the court where the case is filed and the names of the parties to the lawsuit. To be valid, the subpoena must also state the name of the person that is being compelled to appear, as well as where and when the appearance is to be made. If the subpoena is a subpoena duces tecum, it typically lists all documents, electronically stored information, and physical evidence that the witness is being compelled to produce. Some courts require a short statement outlining why a person is being compelled to appear, summarizing why the documents are needed and the rule or law under which the request is allowed to be made.
Subpoena requests can be made in person or by mail. Some administrative agencies, such as civil service offices and local government agencies, will sometimes prepare a subpoena at the written request of a party, and notify them when the documents are ready. Most courts require a fee along with the request that is payable at the time the request is made. Those requesting subpoenas by mail should allow a week or two for processing in most areas. It is usually advisable that a party consult local court rules when preparing a subpoena request.
A subpoena request must usually meet a burden showing that there is a valid reason why the witness should be compelled to testify or that certain records should be produced. Parties sometimes try to avoid a subpoena request by filing a motion to quash a subpoena, requesting the court to declare the subpoena invalid. If motions in opposition to the subpoena are filed and the witness fails to appear or does not deliver the requested documents, the party may be found to be in contempt of court. This may result in civil or criminal penalties according to the discretion of the court.
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