You are wondering what is a subpoena?
You have received a subpoena and you’re wondering what to do next or how to contest it?
Perhaps you are just curious to know what is a subpoena?
In this article, we will discuss the concept of subpoena in detail.
We will explain to you in what the subpoena meaning, understand its use and see how to comply with it.
Let’s get started!
Table of Contents
What is a subpoena
A subpoena is a court order requiring someone to either produce documents in the context of legal proceedings or present their testimony.
Subpoena is a Latin term that means “under penalty”.
In other words, under penalties of the law, you are required to give testimony or produce documents.
You typically have three types of subpoenas:
- Subpoena duces tecum
- Subpoena for a deposition
- Subpoena to appear before the court
Fundamentally, the purpose of a subpoena is to help lawyers representing parties to a legal case gather relevant facts in order to present their case to a judge.
The purpose of a subpoena is to allow a judge to render a fair judgment so parties can seek justice.
Who can issue a subpoena
Under article 269 of Civil Code of Procedure, witnesses are called to attend at court by a subpoena issued by a judge, a court clerk acting on a party’s request or a lawyer.
The witnesses must be called at least 10 days before the time at which they are scheduled to testify unless there is a valid and urgent reason for the court to reduce this delay.
The law authorizes three groups of professionals to issue a subpoena:
- A judge
- Court clerk
- Lawyer
In most cases, when parties are represented by a lawyer, a subpoena will be issued through the lawyer.
In cases like the small claims court where the parties are not authorized to be represented by a lawyer, the court clerk will issue a subpoena.
What are the obligations of the witness
Under article 270 of the Civil Code of Procedures further states that the witnesses are required to give an account of the facts they have personal knowledge, to give an opinion as an expert or product a document or other evidence.
Subpoena duces tecum
A witness may be required, under subpoena, to produce documents, files, material, images, photos or any other type of evidence.
When a witness is required to produce documents and evidence, we refer to this type of subpoena as a subpoena duces tecum.
A subpoena duces tecum is an order to bring and produce documents.
Subpoena to testify
In the context of a case discovery or trial, a subpoena may be sent to someone to physically come to court and testify.
This is the standard subpoena for someone to give an oral account of the facts that they have personal knowledge of.
This type of subpoena in Latin is referred to as subpoena ad testificandum representing an oral testimony given by someone.
What should a subpoena include
A subpoena must state the nature of the application, inform the witness where and when they are required to testify before the court.
Under the Quebec laws, the Minster of Justice establishes the subpoena template to be used in Quebec and specify the witnesses rights and obligations.
The Minister of Justice has in fact provided a model for a notice to be issued to a witness informing them of their duty to respect the terms of the subpoena and consequences if they don’t.
Consequences for not respecting a subpoena
A subpoena is a legal order requiring you to present yourself to court to testify or to produce documents.
It is a serious demand and you must not ignore it or fail to respect its terms.
If you do not respect the terms of a subpoena, you may place yourself in contempt to court.
The court also has all the powers necessary to compel you to testify and issue an arrest warrant to bring you to testify with the assistance of the peace officers.
The court can also order that you pay all costs associated with your failure to testify in court.
As you can see, the Quebec laws treat the subpoena very seriously and so should you.
Contesting a subpoena
If you have received a subpoena and you do not believe it is reasonable or the obligations required from you are excessive, you must file a motion to quash a subpoena.
You cannot just ignore the subpoena if you do not believe it is reasonable.
A motion to quash a subpoena is an application that you’ll file to court, before the deadline you are required to testify or produce a document and provide the grounds on which you believe the subpoena must be contested.
You can contest the subpoena on technical grounds or attack the obligations required from you.
For example, if a subpoena was not served properly or does not follow the standards adopted by the Quebec Minister of Justice, or has a defect of some sort, you can attack the technical validity of the subpoena.
If the subpoena requires you to produce thousands of pages of documents causing you an undue and excessive obligation, you can request from the court to quash that obligation or to limit its scope.
You should consult a litigation lawyer to see how to contest a subpoena.
Takeaways
A subpoena is a legal document ordering someone to do something:
- Testify in court
- Testify for an out-of-court examination
- Produce documents
A subpoena requiring you that you act as a witness is a subpoena ad testificandum.
A subpoena requiring that you produce documents is a subpoena duces tecum.
If you fail to respect a subpoena, it’s as if you have failed to respect an order of a judge.
You can be exposed to contempt to court and fines.
As such, a subpoena is something very serious and you must make sure you treat it seriously.
Be sure to consult with a competent litigation lawyer in case you are not sure how to proceed, the consequences may be harsh if you don’t do anything!
We hope that this article was useful to help you better understand what is a subpoena.
