7028: Discovery: TAKING A DEPOSITION: Subpoena
Purpose of a Subpoena: A subpoena is an order that is needed in most situations in which one party to a proceedings requests another person to appear in person to provide oral testimony or to provide documents that may be used as evidence. It is important to review subpoena rules as there are details and distinctions that this general explanation cannot address, and those details and distinctions depend on the type of proceeding, the type of testimony or evidence sought, and on the location of the person to who the subpoena will be delivered.
Authority to obtain a subpoena:
- FRBP 9016 indicates that FRCP Rule 45 applies to subpoenas.
- FRCP Rule 45 provides the procedure for obtaining and serving a subpoena.
- FRBP 7028 provides instructions for taking a deposition within and adversary proceeding or within a contested matter.
- LBR 2004-1 provides instructions for obtaining a subpoena for a Rule 2004 examination.
3 Types of Subpoenas: Our court offers three different subpoenas:
- Live Testimony -- Subpoena to appear to testify in a trial in adversary proceeding, or a live-evidence hearing in a contested matter. See link below and see FRBP 9017 and FRCP Rule 43.
- Deposition -- Subpoena to appear to provide oral testimony and/or documents at a deposition within an adversary proceeding, or a deposition within a contested matter. See link below and see FRBP 7028 and FRCP Rule 28.
- Rule 2004 Examination -- Subpoena to appear to provide oral testimony and/or documents at a Rule 2004 exam within the bankruptcy case, before an adversary proceeding or contested matter is filed. See link below and see FRBP 2004 and LBR 2004-1.
Personal Service: Pursuant to FRCP Rule 45(b)(1) a subpoena must be personally delivered to the person whose attendance is required by the subpoena
- A person who serves the subpoena must be at least 18 years of age
- A person who serves the subpoena cannot be a party to the proceeding under which the subpoena is issued
- LBR 9036-1(a)(2)(E) indicates that if the clerk issues a subpoena by placing it on a docket, a subsequent Notice of Electronic Filing (NEF) does not constitute effective service of a subpoena.
Proof of Service: The back side of a subpoena contains blanks to indicate proof of service:
- The server must fill in the blanks and sign under penalty of perjury
- Do not file the subpoena or proof of service unless the court orders it to be filed.