UNDERSTANDING A SUMMONS VERSUS A SUBPOENA

It’s always a shock to receive a summons or a subpoena. Providing evidence is an imperative part of any case, however, and you are legally required to respond by the deadline. It’s hard to ensure that each party has had an adequate chance to represent themselves and provide proofs that corroborate their stance. Consequently, both these legal instruments are used as a way to ensure that an individual is brought before the court. The following article will elucidate areas of confusion between a summons or a subpoena and will demarcate the differences between the two. 

What Is A Summons?

A summons essentially provides legal notice to a party about a lawsuit, being the very first form of official communication that lets an individual know that they are being sued. While a summons may sometimes specify a court date, it is not always necessary. 

A summons cannot be ignored, as it is legally binding and essential to ensure due process is followed. However, one will not be held in contempt for ignoring a summons, unlike a subpoena. The direct consequence of ignoring a summons is the issuance of a default judgment in favor of the plaintiff. In the event that the plaintiff themselves do not show, the case is to be dismissed. A summons thus essentially acts as an invitation to participate in the lawsuit. If one does not participate, they have no chance of winning and as a result, lose by default. 

Service of process is how a summons is delivered to the individual, the form and content of which is widely depicted in Rule 4 of the Federal Rules of Civil Procedure. 

how to serve a Summons in New York State

The service of documents is fundamental of any case, and the service of the summons is the first step to participate in any legal imbroglio. In New York City, a summons traditionally is served by the sheriff or a registered process server. However, any individual of legal age who is a citizen of New York may also furnish the service if they have not exceeded their annual limit of five summonses already. 

A summons must address the basis of the venue designated; if it adheres to the plaintiff’s residence, the specification automatically must be that of the plaintiff’s address with their assigned index number and additional date of filing as recognized by the clerk of the court. The federal summons is also usually issued by the clerk of the court. A summons usually gives you 30 days to file a written response to the court paper (complaint or petition) that comes with the summons. But in some cases — like small claims or evictions — the summons schedules a court date.

Ultimately, each jurisdiction determines its own set of rules of civil procedure. However, a broad rule of thumb may be identified by following the Federal Rules of Procedure. These rules state that a summons must include the name of the court, the parties, the address of the plaintiff’s attorney, and the time when the defendant must appear in court if applicable.

What Is A Subpoena?

A subpoena is essentially a command that is ordered by a court. The deliverance of a subpoena means that the court has mandated you to do something. This principle of requirement is present in both civil and criminal cases. 

Without a subpoena, a case is essentially stuck in limbo. The request for information is necessary to propel a case forward, regardless of whether it is testifying in person or producing information that supports the cause of either party. The need to compel individuals into providing the information is why subpoenas are necessary in both civil and criminal cases. 

This does not mean that an individual can be forced into providing every single piece of information at their disposal even remotely connected to the case. On the contrary, only those papers and records that are actually needed should be demanded in the order or subpoena. A particular description is a key to a subpoena, and demand for “all understandings, contracts, and correspondence, etc.,” is in effect a general subpoena, and unreasonable within the 4th Amendment.  The Uniform Rules of Civil Procedure dictate that the subpoena must state the name of the court and the title, if any, of the proceeding. Highly specific in its requisition of evidence, it must command each person to whom it is directed to attend and give testimony while also being explicit about time and place. 

The consequences of ignoring a subpoena are dire. Subpoenas are court orders. Regardless of affiliation to the case, they are legally binding, rendering an individual to be held in contempt if they ignore it.  

The Types Of Subpoenas

The two types of subpoenas– subpoena ad testificandum and subpoena duces tecum – differ in the medium of submitting evidence. A subpoena ad testificandum functions as the enforcement of the obligation of the individual to attend as a witness and is done by a process of the court. This writ, or form, commands the witness, under penalty, to appear at a trial to give testimony. Thus, the subpoena is the mechanism for compelling the attendance of a witness

A subpoena duces tecum does not require you to go to court personally. Evidence is to be submitted as a means of gathering information, often in the form of documentation, but it does not necessitate physical presence. However, if the volume of documents that are potentially relevant to the hearing are to be obtained, the court may order them to be produced prior to the deposition as a part of legal discovery. This is done in order to allow parties involved time to review them prior to the deposition or other hearing. 

There is also a third type of subpoena. This is the Information Subpoena, which requires the information to be provided to the requesting individual. The information subpoena orders the debtor to provide details about their income, their expenses, and where their assets are located upon signature of the Court Clerk. 

how to serve a Subpoena in New York State

An application to the Clerk of the Court may be sent if the production of a record or document is necessary for your case. Service of a subpoena for records may be done by any person (including a friend or relative) who is 18 years of age or older. A subpoena requiring attendance or a subpoena duces tecum usually is served in the same manner as a summons with certain exceptions, to which the filing of the proof of service shall not be required. Ultimately, service shall be deemed complete upon the delivery or mailing of the subpoena. 

An Information Subpoena is generally served by Certified or Registered Mail, Return Receipt Requested, or it may alternatively be served by personal delivery or by using the “Substituted Service” or “Conspicuous Service” method.

A subpoena is one of the most fundamental steps in the litigation. Refusal to comply and its consequences have famously been seen through Presidential example, with Richard M. Nixon’s reluctance to turn over the tape recordings of his White House office conversations to the Watergate special prosecutor. Nixon fought the subpoena all the way to the Supreme Court. 

The subpoena was, however, upheld. 

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Sources

1. 18 years old.

2. CPLR 3101 [a] [1]

3. Hale v. Henkel, 201 US 43L ed 652

4. Uniform Rules of Criminal Procedure Rule 731 (a)

5. NY CPLR § 2303 (2012)

6. Where service of such a   subpoena is made pursuant to subdivision two or four of NY CPLR § 308 (2015)

7. NY CPLR § R5224 (2012)

8. UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)