Seven Important Facts About Subpoenas

Jul 1, 2021

If you have received a subpoena from a process server, it is important to know what it is and what it means.  First and foremost, it is always recommended you reach out to an attorney to understand what is and is not required.

A subpoena is a writ ordering a person to attend a court proceeding or to provide documents or deposition testimony. In Wisconsin, parties involved in litigation may issue a subpoena to a third-party (non-party to the case) for the purposes of discovery and for testimony at trial. A subpoena may command a person or entity (or representative of an entity) to (1) appear for a deposition, (2) produce documents, and/or (3) appear at trial or an evidentiary hearing to provide testimony. 

Here are a few things to know about subpoenas:

(1) Generally, the subpoena must be served upon an individual (or a representative of the company) at least 10 days before the deposition, trial, or when documents are to be produced. The reason for this is in part to allow the subpoenaed party or parties to the litigation the opportunity to ask the court to quash the subpoena (i.e., void the subpoena so the subpoenaed party is not legally bound to respond or appear).

(2) The rules on the scope of permissible discovery still apply. A party issuing the subpoena is not entitled to the production of documents that are not relevant to the subject matter of the case.

(3) In order to determine whether a motion to quash is appropriate, ask the requesting party for a copy of the complaint, answer, and other pleadings in the case. This will help determine whether the scope of the documents requested in the subpoena are overbroad or irrelevant. If they are, one can move the court to quash the subpoena in whole or in part.

(4)  A subpoenaed party is not required to appear for deposition if the subpoena was improperly served. 

(5) Individuals who receive a subpoena are entitled to compensation. If someone is commanded to appear at a deposition or to testify at trial they are generally entitled to witness and mileage fees. Document copying charges may also be reimbursable.  If you are served a subpoena that is not accompanied with the statutory witness fee – it is typically not enforceable.

(6) Be cautious about the documents that are produced.  Although one cannot arbitrarily refuse to produce documents that are otherwise relevant and non-privileged, the information disclosed could support the basis for a party in the case to assert a third-party claim.  Do not waive the right to quash a subpoena.

(7) Require a protective order if the documents contain sensitive information. A protective order generally limits who can see the documents and how they may be used in court.

If you are curious to learn even more about Wisconsin Subpoena Law, check out Wisconsin State Legislature’s Website.

Subpoena vs Summons (FAQ)

Many times, these two terms get mixed up. They both are legal documents that call a business or person into court. The difference has to do with why they are being called to court. A subpoena is a legal document that requires you to testify or otherwise provide evidence for a case. A summons is a legal document that requires you to appear in court in response to a charge or other violation.

If you have received a subpoena and have any questions about how to respond, please contact a member of DeWitt’s Litigation team.