Documents and Papers from a Court : Subpoena

What is a subpoena?

A subpoena is an order from the court that requires you to be somewhere in person at a certain place, date and time to testify as a witness in a case. In a criminal case, you can be “subpoenaed” to testify in court. In a civil case, you may be subpoenaed to appear at a deposition, which is testimony taken outside of court. A subpoena may also require that you provide certain documents to the court or a party in the case. This might be called a “subpoena duces tecum.” The subpoena rules (Rule 45 of the Ohio Rules of Civil Procedure) allow a lot of access to documents and information kept by people who are not even parties in the case.

How is a subpoena issued?
Each party’s attorney has the authority to serve pre-signed subpoenas after they enter the case. If you do not have an attorney, the clerk of court will issue the subpoena. Every properly issued subpoena does the following:

    • states the name of the court, title of the court case and case number;

    • commands the person receiving it to do the following at a certain time and place:

    • attend and testify at a trial, hearing or deposition,

    • produce documents or other things at a trial, hearing or deposition,

    • permit inspection and copying, testing or sampling of any tangible things that are being kept by that person, or

    • permit entry onto certain land or other property under the control of the person; and

    • write out the text of divisions (C) and (D) from the rule (Ohio Civ. R. 45 (2007) – see the text included in the sample subpoena, below).

What do I do if I get a subpoena?
If you receive a subpoena, read it carefully. The subpoena will tell you the names of the parties in the case; the date, time and place you are being ordered to appear; the name of the lawyer who sent the subpoena; and the location and type of court where the lawsuit is taking place. Note whether the subpoena requires you to bring certain documents or other objects, as described in the subpoena or in a separate paper given to you along with the subpoena.

Subpoenas may be delivered in person by a police officer or other person who is at least age 18 and not a party in the lawsuit.

If you are not one of the parties in the case, you should receive a fee and transportation costs (mileage) for appearing at the time and place stated in the subpoena. The person serving the subpoena should give you cash or a check for this fee and transportation costs when you are served.

Note that the under power of the subpoena, you must remain at the place you have been ordered to appear until the testimony in the case is closed and the judge excuses you. At the end of each day of trial, you should talk to the lawyer for the party who sent you the subpoena to find out if you will be called to testify the next day or sometime in the future. This will prevent confusion and stop you from waiting unnecessarily.

What happens if I don't comply with a subpoena?
If you do not appear as the subpoena orders, you may be found in contempt of court. Contempt of court may result in a fine or, worse, a prison term. The court may also order you to pay the parties who were damaged because you failed to appear or resisted discovery. The court may award the opposing party money damages that could include lost earnings and reasonable attorney fees.

Can I lawfully object to a subpoena?
A court can quash (void) or modify a subpoena if the subpoena

  • doesn’t allow a reasonable time to comply;

  • asks for disclosure of privileged or otherwise protected information without exception or where waiver applies; or

  • imposes an undue burden on the person.

You may object in writing to any subpoena, listing all the reasons you think it is unfair for you to appear or to produce the requested documents or objects. Objections should be filed with the court immediately.

The rule gives you a maximum of 14 days to file an objection, but do not wait until the date you are required to appear or provide the documents. You may want to work with a lawyer to make sure that your objections are filed correctly and on time.

If it is impossible or extremely difficult for you to appear at the time required in the subpoena, call the lawyer for the party who sent the subpoena.

The lawyer's name, address and phone number usually appear on the subpoena. He or she might be able to postpone your testimony so you can testify at another time. However, the lawyer might not be able to change the date and time of a requested appearance if a court date is already set and cannot be moved. If it is absolutely impossible for you to appear, or if it will be seriously harmful to your health or business, you should talk to your own lawyer to decide if there are legal grounds for you to be excused.

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This content was created by the Ohio State Bar Foundation's 2006 Fellows Class - Keys to the Courtroom Project.

See also the Forms & Education tab in this section for more information.

The information in this site is not intended as legal advice.
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