By definition, a government subpoena is a court-issued writ with the authority to compel a witness’s testimony or order the production of evidence. Failure to comply can incur penalties. There are two primary types of government subpoena:
i. subpoena ad testificandum: orders a person to testify in a legal proceeding
ii. subpoena duces tecum; orders a person or organization to provide physical evidence for a legal proceeding.
In terms of content, a government subpoena must indicate the title of the proceeding, provide the name of the court and its seal, and order the witness to attend and testify at the time and place specified in the document. The court clerk issues a signed and sealed blank subpoena to the person who requests it, and that person must fill in all relevant details before the document is served. A government subpoena can order the witness to produce relevant items such as books, documents, data, and other objects. When these items arrive, the court may allow both sides and their attorneys to inspect them in part or in total.
Subpoenas are usually served by a marshal, deputy marshal, or anyone over 18 who is not a party to the action. The server must provide a copy of the subpoena to the witness and under normal circumstances provide them with a one-day attendance fee and the legally-approved mileage allowance. (The fee and allowance are waived, however, when the U.S. government or a federal officer / agency has requested the subpoena.)
Service may take place anywhere within the United States: service outside the country is covered specifically under 28 U.S.C. § 1783. If a defendant is unable to pay the required witness fees and the witness is necessary for an adequate defense, they may make an ex parte application requesting the court to order the issuing of a subpoena for the named witness. Service costs and witness fees will be covered from the same resources that cover witnesses who receive government subpoenas.
When it comes to subpoenas requesting personal or confidential information about a victim, it may be served on a third party only via court order. Before entering the order and unless special circumstances apply, the court must notify the victim so that they have the opportunity to modify the subpoena or quash it entirely.
With government deposition subpoenas, a court order authorizes the clerk in the district hosting the deposition to issue a subpoena for the witness referenced in the order. The court may take the convenience of the witness and parties on both sides when designating a deposition location.
If a witness disregards a subpoena issued by a federal court and has no acceptable excuse for doing so, they may be held in contempt by the court. A magistrate judge may also hold a witness in contempt under 28 U.S.C. § 636(e) if a witness flagrantly disobeys a subpoena that the magistrate judge issued.
