Issuing a Subpoena

FRCP 45 made applicable by FRBP 9016

 

General information

A subpoena commands a person to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information or tangible things in that person’s possession; or permit the inspection of premises.

 

 

Available forms:

 

Form

Used for...

Form B 255 (Subpoena in an Adversary Proceeding)

Adversary proceedings

Form B 256 (Subpoena in a Case Under the Bankruptcy Code)

Contested matters

Form B 254 (Subpoena for Rule 2004 Examination)

Depositions

 

 

 

Which court issues the subpoena?

 

Purpose

Subpoena is issued by...

For attendance at a hearing or trial

The court for the district where the hearing or trial is to be held.

For attendance at a deposition

The court for the district where the deposition is to be taken.

For production or inspection of documents (separate from commanding a person’s attendance)

The court for the district where the production or inspection is to be made.

 

 

 

Issuance of the subpoena

The clerk must issue a subpoena, signed but otherwise blank, to a party who requests it. That party must complete it before service. An attorney may issue and sign a subpoena as an officer of a court in which the attorney is authorized to practice or a court for a district where a deposition is to be taken or production to be made, if the attorney is authorized to practice in the court where the action is pending.

 

There is no fee for issuance of a subpoena.

 

Advisory Committee Note (1991) to FRCP 45, states in part:

 

Paragraph (a)(3) authorizes attorneys in distant districts to serve as officers authorized to issue commands in the name of the court. Any attorney permitted to represent in a federal court, even one admitted pro hac vice, has the same authority as a clerk to issue a subpoena from any federal court for the district in which the subpoena is served and enforced. The amended rule effectively authorizes service of a subpoena anywhere in the United States by an attorney representing any party.

 

 

Service of the Subpoena

The clerk is not involved in service of a subpoena, other than receiving proof of service, when required by the court. Proof of service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.

 

 

Miscellaneous Proceedings

A miscellaneous proceeding should be opened in the following circumstances:

 

 

Opening a miscellaneous proceeding incurs the fee for filing a document not in a case. View current fees

 

A miscellaneous proceeding does not need to be opened for issuance of a subpoena. However, a court in whose name a subpoena is issued is responsible for its enforcement.