You might have received a subpoena from a court, and you might be wondering how to respond. You might be inclined to ignore it, but you might be unsure of the consequences of doing so. Be aware of this much–a subpoena with your name on it is nothing to take lightly.
Essentially, a subpoena is a court order to do something – such as to produce documents or appear in court or some other legal proceeding. Courts also issue subpoenas to third parties, such as hospitals.
The Two Types of Subpoenas
New Jersey state law and federal law recognize two types of subpoenas—the subpoena ad testificandum and the subpoena duces tecum. Don’t let the fancy Latin terminology intimidate you. All that really means is:
- A subpoena ad testificandum requires you to testify.
- A subpoena duces tecum requires you to produce documents or other evidence.
You can look at the subpoena itself to find out what kind it is.
The Uses of Subpoenas
Family lawyers use subpoenas for the following purposes:
- Gathering financial information: Subpoenas can compel you to reveal information about your finances, such as bank statements, tax returns, and more. A court or an opposing party could use the information to resolve child support, alimony, or divorce-related division of assets cases.
- Employment records: A subpoena might demand employment records from you or from your employer. Family courts need this to verify things like income and employment status. If you are a non-custodial parent, for example, your income is relevant to your child support liability.
- Communication records: A court can subpoena emails, text messages, and social media posts from your service provider to gather evidence about your character, behavior, intentions, or the state of your family relationships. This information can help resolve custody disputes or disputes involving domestic violence.
- Medical records: A court can subpoena medical records from your healthcare provider. Your health might be relevant from child custody or spousal support. It might also shed light on your ability to work and earn income to pay child support or alimony.
- Educational records: Courts can subpoena a child’s educational records from their school in child custody cases. Educational records can shed light on a child’s ability, academic performance, social behavior, and special needs. This information, in turn, can inform decisions about custody.
- Property information: A court can use subpoenas to compel divorcing spouses to reveal information about their income and assets. The purpose of this intrusion would be to ensure a fair division of assets between divorcing spouses.
- Testimony: A subpoena can drag a witness into court (or to a deposition) to testify. Such testimony can provide critical information about family dynamics and about the character of the witness.
- Expert reports: In some cases, you can use a subpoena to obtain reports from experts such as financial analysts, child psychologists, or child welfare specialists with knowledge about a family law case. In some cases, this is forbidden by work product and confidentiality considerations.
- Evidence of criminality, such as financial fraud or domestic abuse.
- DNA testing: Courts can use subpoenas In paternity disputes to obtain DNA test results or medical records.
The foregoing is not an exhaustive list of possible uses of a subpoena in family law proceedings.
Who Can Issue a Subpoena?
Under New Jersey law, the following parties have the authority to issue a subpoena:
- Judges or magistrates can issue subpoenas using their judicial authority to manage and oversee legal proceedings.
- Lawyers representing parties in a family law case can sometimes issue subpoenas on behalf of the court. Layers usually issue subpoenas to collect evidence or compel the attendance of witnesses at a hearing or trial.
- A court clerk can issue a subpoena at the request of a party or their attorney.
- Parties to a family law case can issue subpoenas on their own under certain circumstances. This happens most often when a party to a family law case represents themselves (and therefore acts as their own lawyer).
In all cases, the issuing party must follow the specific rules and procedures set by the family court.
Serving a Subpoena
Typically, an attorney requests a subpoena and the court clerk, a notary public, or a justice of the peace actually issues it. Once the subpoena has been issued to you, service of process must take place – this is when the subpoena is properly given to the appropriate party. Under New Jersey law, there are a few different ways you can serve a subpoena, such as through certified mail.
Responding to a Subpoena
A subpoena identifies which documents or evidence you are requesting or whose presence you are requesting. The wording of a properly formatted subpoena must be very detailed and specific:
- Keep any documents that might be the subject of a subpoena, in case you receive a subpoena that requests them.
- If you are issuing a subpoena, it is best to have an attorney draft it for you.
- If you are the recipient of a subpoena, read it carefully or let your lawyer read it for you.
- If you receive a subpoena duces tecum, take note of exactly who is requesting the information from you and what information they are requesting. This will help you prepare for court.
- If you receive a subpoena, check the hearing date and time and be sure not to miss it.
If you receive a subpoena, you must respond to it. Failure to respond to a subpoena can get you cited for contempt of court. Above all, talk to an attorney and get some legal advice if you receive a subpoena.
The Penalties for Ignoring a Subpoena
Since a subpoena is a court order, ignoring one is a civil or criminal offense:
- Civil contempt occurs when you simply fail to comply with the terms of a subpoena. Skipping a hearing that a subpoena requires you to attend, or failing to produce requested documents, renders you liable for a civil contempt charge.
- Criminal contempt refers to disruptive or disrespectful behavior in court. A judge can cite you for criminal contempt, however, for a willful refusal to submit documents.
Penalties for contempt of court often include a fine, jail time, or both. A sentence might be open-ended. The judge might fine you $200 a day until you produce the requested evidence, for example, or even jail you until you produce them.
Justifications for Ignoring a Subpoena
In some cases, you have the legal right to ignore a demand contained in a subpoena. These cases include situations where:
- The information sought is protected by attorney-client privilege or some other legal privilege.
- You lost or no longer have the information (if the court believes you).
- The information violates your Fifth Amendment constitutional right against self-incrimination (if it would amount to a confession of a crime, for example).
- The request is overbroad (“Please provide all information in your possession that relates to this case,” for example).
- The request is unduly burdensome. Some parties will use burdensome requests as a vexatious legal weapon.
If a subpoena requests something inappropriate, a judge can “quash” (cancel) it.
Schedule a Free Case Review With a Monmouth County Family Lawyer
Issuing or receiving a subpoena is no laughing matter; it is serious business. It’s not a good idea to represent yourself once things get to this point. Find an experienced Monmouth County family lawyer and schedule a free initial consultation.