Subpoenas

A subpoena is a document that requires witness testimony or specific documents to be produced in court. If a subpoena is signed by a jurist, it is considered a court order. In Family Court, a jurist is the judge, support magistrate, or referee assigned to your case. You may need a subpoena if a witness will not testify voluntarily or if you need documents that you do not have.

You can ask the court to sign a subpoena any time after the case starts. In a child support case, you may want to ask the court to sign the subpoena as soon as possible after the first time you appear in court. In a custody or visitation case, you may want to ask the court to sign the subpoena when the case is first scheduled for a trial or hearing.

There are two main types of subpoena in Family Court:

• Witness Testimony (Subpoena Ad Testificandum)
  This type of subpoena is used to make someone give testimony. Testimony is evidence that a witness gives under oath in court. A witness is required to testify if a court signs a subpoena. A witness can also voluntarily testify without a subpoena.
• Produce Documents (Subpoena Duces Tecum)
  This type of subpoena is used to make someone or a place provide documents to the court. Documents may include records from a hospital, bank, government office, credit card company, employer, or school.

You can find a blank witness subpoena (ad testificandum) on the Family Court’s website at NYCourts.gov.

You can fill out a subpoena for documents (duces tecum) for employment, medical, or bank records using Family Legal Care’s free, online step-by-step Guided Court Forms.

You can also ask the clerk of the court if they have blank subpoena forms.

Subpoena Ad Testificandum

• The caption includes the name of the court, names of the parties and their roles (petitioner or respondent), and docket and file numbers (which you can find in the upper right corner of the petition);
• The name and address of the person subpoenaed; and
• Details about when, where, and how they must testify.

Subpoena Duces Tecum

• The caption includes the name of the court, names of the parties and their roles (petitioner or respondent), and docket and file numbers (which you can find in the upper right corner of the petition);
• The name and address of the person or business subpoenaed;
• Details about when, where, and how they should provide the documents to the court; and
• A list of the specific documents requested. For example, all notes, files, drawings, reports, test results, letters, or photos, including oral, written, and electronic.

In general, a subpoena must be signed by the jurist before it can be served on the person or business named in it.

If the subpoena is signed by the court, it will be a court order. Sometimes a subpoena can be signed by a lawyer or the court clerk, but then it will not be a court order.

If a court-ordered subpoena is not obeyed, the witness or agency subpoenaed may be considered in contempt of court and fined.

A court-ordered subpoena is needed in certain circumstances, like government agencies or hospitals.

Remember

A subpoena issued in New York State is only enforceable against a person or business in New York State.

After a subpoena is signed, you must have it served on, or given to, the person or business named in the subpoena. If the subpoena is for documents, it should also be served promptly on all parties in the case (or their lawyer, if they have one).

The person who served the subpoena must complete either an Affirmation of Service or an Affidavit of Service, which must be notarized. You must give the completed form to the court. The form shows that the papers were served the right way.

Remember

You may need to attach other documents when you serve a subpoena:

• A blank certification of business records form for business or medical records (this shows that the records are real)
• A completed patient authorization form for medical records (unless the subpoena is court-ordered)

• You are NOT allowed serve any documents or papers in your own case. Any person 18 years or older, who is not a party to the case, can serve the subpoena. This may be a friend, relative, private process server, or the sheriff’s office.
• Typically, a subpoena must be handed directly to the person named in the document. In the case of a business, the subpoena must be handed to a person or department authorized to accept it. This is called personal service.
• A witness subpoena must be served within a “reasonable time” before the witness has to appear in court. A subpoena for documents generally must be served at least 20 days before the date that the documents are due. Sometimes the court will tell you when you must serve the subpoena.
• Although there is no fee to file a subpoena, there may be fees associated with the subpoena itself. You can ask the court to waive, or cancel, the fees if you cannot afford them or represent yourself.

For more information, see the Family Legal Care’s tools and resources for Serving Court Papers.

For a subpoena duces tecum, the person or business usually sends the documents directly to the court. The court will let you know when they arrive. You can review them in the court’s records room. You must inform the other party in your case within 5 days that the documents are available in court to review.

If a person or business does not obey a court-ordered subpoena, you can file a motion to compel. See our “Motions” and “Discovery” guides to learn more. This is a written request for the court to order the person or business to submit the documents or testify. If it is a court-ordered subpoena, the person or business can also be held in contempt of court. A finding of contempt can have negative impacts on a case, such as evidence being kept out of the case. Contempt may also result in fines and/or attorney fees.

Yes. The person or business named in the subpoena or the other party in the case can challenge the subpoena by filing a motion or objection with the court. The subpoena may be challenged for reasons such as:

• The information requested is protected or confidential;
• The information is not relevant (not related to the main issue of the case);
• The subpoena does not have the required language or information;
• The subpoena is being used to harass the person or business.

Family Legal Care offers free legal information and advice on New York family law and court procedure. Call our Helpline at 212-343-1122 or visit our Get Help page.

This guide provides basic, general legal information only and should not be considered legal advice. The information may not address all the issues or requirements specific to your situation. If you are seeking advice, Family Legal Care encourages you to consult with a lawyer. Family Legal Care does not provide legal representation, and no attorney-client relationship has been established through your use of this document.