When you are served with a subpoena, it can elicit a range of emotions, particularly if you are not directly involved in the specific lawsuit. However, it is important to understand that being served with a subpoena is distinct from being served with a lawsuit, so do not get too alarmed and take a deep breath to remain calm.
A subpoena represents a formal writ that commands an individual to appear before a court, often as a witness in a case. There are two primary types of subpoenas. The first is a subpoena ad testificandum, which compels an individual to attend and provide testimony at a specified time and place as indicated in the subpoena. The second is a subpoena duces tecum, which not only requires an individual to produce specific documents mentioned in the subpoena but may also necessitate their presence and testimony.
Requirements of a Subpoena
The Colorado Rules of Civil Procedure Rule 45 governs the requirements surrounding the use of subpoenas in the state of Colorado. The Rule provides that every subpoena must:
- State the court from which it is issued;
- State the title of the action, the court in which it is pending and the case number;
- Command the person to do one or both of the following: attend and testify at a deposition, hearing, or trial, or produce paper, documents, or electronic records in that person’s custody;
- Identify the party and the party’s attorney who is serving the subpoena;
- Identify the names, addresses, and phone numbers, and emails address if known, of the attorneys for each of the parties and any party in the action without an attorney;
- State the method for recording the testimony if the subpoena is for a deposition;
- If production of records is sought, certain text required under the rule must be included in the subpoena as well.
Timeframe for Service of a Subpoena
A subpoena for testimony in a trial or hearing must be served no later than 48 hours before the time for appearance set out in the subpoena. A subpoena for deposition testimony must be served no later than 7 days before compliance is required, and a subpoena for production of documents must be served no later than 14 days before compliance is required. The subpoena must be personally served on a witness, that is, in person, not by mail or publication.
As part of your required attendance, you will be tendered payment of one day’s mileage at the time you are served or within a reasonable time after service. However, if the subpoena is issued by the state of Colorado payment of mileage need not be given.
If you fail to obey the subpoena, the common method of enforcing a subpoena is to obtain a court order requiring the witness who was served to appear before the court, or by initiating a civil contempt proceeding.
Quashing a Subpoena
You have the option of filing a motion to quash (to terminate) or modify a subpoena. The court must quash or modify a subpoena that:
- fails to allow a reasonable time to comply;
- requires a person who is neither a party nor a party’s officer to attend a deposition in any county other than where the person resides or is employed or transacts his business in person;
- requires disclosure of privileged or other protected matter; or
- subjects a person to undue burden.
This is not an exhaustive list, and there may be other reasons the court may deem to quash or modify a subpoena.
What Should You Do
Receiving a subpoena may take you by surprise, but it is important to remain calm and to review the contents of the subpoena to determine what you should do next. If you are requested to appear before the court to provide testimony you should comply with the terms of the subpoena and make yourself available on the day that you are subpoenaed for. If you are requested to produce records in response to the Subpoena, then you should make every effort to obtain and produce the documents to the party issuing the subpoena. If there is a reason why you cannot testify or produce documents, you may need to seek the help of an attorney who can file a motion to quash or modify. One thing that you should never do is ignore the subpoena, because if you do ignore it you may face a civil contempt proceeding.