2-20: Subpoenas: DISCOVERY or TESTIMONY IN COURT: Notices
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 an adversary proceeding or within a contested matter.
- LBR 2004-1 provides instructions for obtaining a subpoena for a Rule 2004 examination.
5 Subpoena Scenarios: Our court offers FOUR different subpoenas that can be used in FIVE different scenarios :
- RULE 2004 EXAMINATION: Oral Testimony and/or Production of Documents -- FORM 2540 -- Subpoena to appear to provide oral testimony and/or documents at a Rule 2004 Examination even though an adversary proceeding or contested matter has not been filed. See link below to Form 2540 and see FRBP 2004, LBR 2004-1, and FRCP Rule 45.
- LIVE TESTIMONY: TRIAL OR EVIDENTIARY HEARING: Oral Testimony -- FORM 2550 --Subpoena to appear to testify in a trial in adversary proceeding, or a live-evidence hearing in a contested matter. See link below to Form 2550 and see FRBP 9017 and FRCP Rules 43 and 45.
- DEPOSITION: Oral Testimony and/or Production of Documents -- FORM 2560 --Subpoena to appear to provide oral testimony and/or documents at a deposition to take discovery within an adversary proceeding or within a contested matter. See link below to Form 2560 and see FRCP Rules 30 and 45.
- PRODUCE DOCUMENTS WITHOUT ORAL TESTIMONY: Produce Documents or Other Items -- FORM 2570 --Subpoena to produce documents or other items, and/or to allow inspection of premises as part of an adversary proceeding or a contested matter. See link below to Form 2570 and see FRCP Rules 34 and 45.
- INSPECT PREMISES: On site Inspection of Premises -- FORM 2570 --Subpoena to produce documents or other items, and/or to allow inspection of premises as part of an adversary proceeding or a contested matter. See link below to Form 2570 and see FRCP Rules 34 and 45.
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 person who serves a subpeona 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.