A subpoena is a writ issued by a government agency which orders the appearance of individuals or items on a certain day, time and place. A writ is a formal written issued by a person with judicial jurisdiction. In Latin, subpoena means “under penalty." A civil subpoena is carried out by a person who is not in either party and is at least 18 years of age. Service by a United States Marshal is rare and occurs only when a court or United States attorney orders the US Marshal to do so.
There are two types of subpoenas. Subpoena ad testificandum is a formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony. A court or Grand Jury will use a civil subpoena to compel individuals to appear at a specific time to give their testimony. Anyone who receives a subpoena will be charged with contempt if he or she fails to appear at the given time.
Subpoena duces tecum is the judicial process to command the assembly before a court of documents and other tangible items of evidence. A person served a civil subpoena must produce the items sought for trial. Subpoena duces tecum is open to anyone who has the relevant documents. The subpoena may not be permitted if there are alternative methods for obtaining the information sought is readily available.
A civil subpoena has certain guidelines which must be followed for such a written order to be followed. For the majority of subpoenas being served, they must be served within the district or within 100 miles of the district where the depositions and trial will be taking place. According to the Federal Rule of Civil Procedure, the court may require an individual to travel more than 100 miles to attend the trial providing the individual is compensated. A civil subpoena for a deposition must be given by the court hearing the deposition. A separate subpoena must be given to a witness at a trial by the court hearing the trial.
The clerk of the United States District or Bankruptcy Court will sign and issue the subpoena to a person not affiliated with either party. This person will then serve the subpoena to unsuspecting party. In most cases, the subpoena must be actually served to the person. The subpoena will state specifically where and when the individual or items are to be present in court. Each person involved in the case will be stated on the court letterhead. The return of service of the subpoena must be signed by the clerk on the subpoena itself.