A standard subpoena orders you to appear and give sworn testimony; a subpoena duces tecum orders you to produce documents or other tangible evidence. That is the whole of the difference between a subpoena and a subpoena duces tecum: one demands your words, the other demands your records. Both are court orders with the same enforcement teeth behind them, and a single document can do both jobs at once, but the response options available to you depend on which kind you’ve been handed.
What a Subpoena for Testimony Does
A subpoena ad testificandum, the formal name for the testimony version, orders a specific person to appear at a set time and place and answer questions under oath. The setting might be a trial, a pretrial hearing, or a deposition. Someone involved in the case has decided you know something relevant, and the subpoena makes your attendance mandatory rather than optional.
The order attaches to you personally. You cannot send a colleague, a written statement, or a recorded answer in your place. If the subpoena says appear, you appear.
What a Subpoena Duces Tecum Does
A subpoena duces tecum orders the recipient to produce specific documents, records, or physical evidence. The Latin translates roughly to “you shall bring with you.” It can be served on a person, a business, a hospital, or any organization holding materials relevant to a case, and it does most of the heavy lifting during discovery, when each side is gathering evidence before trial.
Typical targets include emails, text messages, financial statements, contracts, photographs, and medical records. The scope reaches well past paper. Under federal rules, electronically stored information counts too, including databases, spreadsheets, and the metadata embedded in digital files.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena When electronic records are requested, the usual expectation is that you produce them in the form you actually keep them, with folder structures and email attachments intact.
When One Subpoena Does Both
The two types are not always separate documents. Federal Rule of Civil Procedure 45 allows a single subpoena to command attendance at a deposition and require the witness to bring documents along.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena This combination is common when an attorney wants to question a witness about records the witness controls. If your subpoena carries both commands, compliance means both: showing up to testify and bringing the materials with you.
Read the document carefully to see which boxes it checks. The response options below depend on it.
How to Respond Depends on Which Type You Got
Start by identifying four things on the face of the subpoena: what’s demanded, who’s demanding it, the compliance deadline, and the court that issued it. From there, the right next step turns on whether you’re being asked for testimony, documents, or both.
Written Objections (Documents Only)
If you’ve been served with a subpoena duces tecum and believe the request is problematic, your first and fastest tool is a written objection served on the attorney or party named in the subpoena. The objection must arrive before the earlier of two deadlines: the compliance date stated in the subpoena, or 14 days after you were served.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena Once the objection is served, you don’t have to produce anything unless a court orders you to. The burden shifts to the other side to file a motion compelling production.
This option exists only for the document side of a subpoena. There is no equivalent written objection that excuses you from showing up to testify.
Motion to Quash (Either Type)
A motion to quash goes further and works for both testimony and document subpoenas. Filed with the court, it asks a judge to cancel or narrow the subpoena. The court must quash a subpoena that fails to allow reasonable time to comply, exceeds the geographic limits on witness travel, demands privileged material, or imposes an undue burden.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena There is no fixed 14-day window; the motion simply has to be timely, which in practice means filing as soon as possible after service. Waiting past the compliance date will almost certainly sink it.
A written objection is a quick, party-to-party move that pauses your obligation to produce documents. A motion to quash involves the court and can eliminate the obligation entirely. Many recipients of a document subpoena use both.
The Geographic Check (Testimony)
If the subpoena orders you to appear for trial, check the location against the travel limits before anything else. A trial subpoena generally cannot require a person to travel more than 100 miles from where they reside, work, or regularly conduct business in person, unless the person is a party or party officer who lives in the same state as the court.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena A location outside those limits is grounds to challenge the order.
Protecting Privileged or Sensitive Material
Not everything a subpoena asks for has to be turned over, but the protections only hold if you assert them properly. This is almost entirely a document-subpoena issue; testimony privileges work differently and are usually invoked question by question at the deposition or hearing itself.
Attorney-Client Privilege and Work Product
If a subpoena seeks communications between you and your attorney, or documents prepared in anticipation of litigation, you can withhold those materials. You must expressly claim the privilege and describe the withheld items in enough detail that the requesting party can evaluate the claim without seeing the content.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena Silently omitting privileged documents from a production is not enough and can waive the privilege.
Medical Records and HIPAA
Healthcare providers served with a subpoena for patient records carry an extra layer of compliance. Under the HIPAA Privacy Rule, a provider can disclose patient information in response to a subpoena only if the patient was notified and given a chance to object, or if the requesting party obtained a qualified protective order from the court.2HHS.gov. Court Orders and Subpoenas A plain subpoena from an attorney, with neither safeguard in place, does not clear the HIPAA bar.
Trade Secrets and Confidential Business Information
A business subpoenaed for proprietary formulas, client lists, pricing strategies, or similar material can move to quash or modify the subpoena. Federal rules recognize trade secrets and confidential commercial information as grounds for modification.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena Even when a court decides the material has to be produced, it can impose conditions, such as a protective order limiting who sees the information and how it can be used. The requesting party typically has to show a substantial need that cannot be met any other way.
What Happens If You Ignore Either One
The penalties for noncompliance don’t care which type of subpoena you received. A court can hold you in contempt, and the consequences divide into two tracks.
Civil Contempt
Civil contempt is designed to force compliance. The penalties are coercive and continue until you obey the order. A judge might impose escalating daily fines or jail time that ends the moment you produce the documents or appear to testify.3United States Department of Justice. Criminal Versus Civil Contempt Because the purpose is future compliance rather than punishment, civil contempt proceedings don’t require proof beyond a reasonable doubt or a jury trial. You still get notice and an opportunity to be heard.
Criminal Contempt
Criminal contempt is punishment for past disobedience. Federal courts have broad authority to punish contempt with fines, imprisonment, or both.4Office of the Law Revision Counsel. 18 USC 401 – Power of Court Because it’s treated as a crime, you’re entitled to the full range of constitutional protections: notice of the charges, the right to counsel, protection against self-incrimination, and proof beyond a reasonable doubt. If the potential sentence exceeds six months, you also have the right to a jury trial.3United States Department of Justice. Criminal Versus Civil Contempt
On top of contempt, a court can order you to reimburse the other party for attorney fees and costs they spent enforcing the subpoena. If you have a legitimate reason not to comply, use the tools above. Doing nothing is the one response the rules do not protect.