By: Undisputed Legal/Subpoena Service Department
There are three kinds of Subpoenas,
I. Subpoena To Testify. (Ad Testificandum)
Requires a person to come to the Court to testify as a witness.
II. Subpoena For Records. (Duces Tecum)
Requires documents, papers, writing, etc., to be brought to the Court.
III. Information Subpoena.
Requires the information be provided to the person requesting it.
Methods of Service
A Subpoena to Testify or a Subpoena for Records is generally served on an individual by processing personal (in hand) delivery. For service on an individual, under certain circumstances, it may be appropriate to use an alternate method of service such as “Substituted Service” or “Conspicuous Service.”
“Substituted Service” is the personal service of the Subpoena on someone other than the person who is being subpoenaed (the witness) at the actual place of business or home of residence of the witness. The process server must then mail a copy of the Subpoena to the witness by first-class mail to the witness’s actual location of business or home. Mark the envelop “Personal and Confidential.”
“Conspicuous Service” is the Subpoena’s service by leaving it at the residence or place of business of the witness. Before leaving the Subpoena, the process server must make at least two attempts. If no one is found on either attempt, on the third try, the Subpoena may be affixed to the door with adhesive tape, and a copy must be mailed to the witness’s residence by first class mail. Mark the envelope “Personal and Confidential.”
An Information Subpoena is generally served by Certified or Registered Mail, Return Receipt Requested, or it may alternatively be done by personal delivery or by using the “Substituted Service” or “Conspicuous Service” method.
Who May Serve a Subpoena
A Process Server, or anyone NOT A PARTY to the action, who is over the age of 18, and not a Police Officer, may serve the Subpoena.
Proof of Service
The person who is going to serve the Subpoena must:
1) Find the person to be served.
2) Show that person the original Subpoena.
3) Give that person a copy of the Subpoena.
4) Fill out the Affidavit of Service on the back of the original.
5) Retain the Affidavit of Service for further procedures if the person fails to comply with the Subpoena.
6) A copy of a Subpoena for Records (Duces Tecum) must also be served
either ‘in hand’ or by mail on each party who has appeared in the action so that it is received by them promptly after service on the witness.
For an Information Subpoena follow the above procedure, or
1) Place a copy of the Subpoena, together with an original and composition of the questions to be answered, in an envelope addressed to the witness.
2) Include a self-addressed, stamped envelope for use by the witness returning the answered questions to you.
3) Mail the envelope to the witness by Certified or Registered Mail, Return Receipt Requested.
Fees for Service
When served with a Subpoena to Testify or a Subpoena for Records, the witness must be paid a witness fee of $15.00 per day. If the witness is served outside the City of New York, s/he shall also be paid 23 cents per mile to the place of attendance, from the site where s/he was done, and return. The fee must be paid a reasonable amount of time before the scheduled date. Nonpayment of the witness fee voids the duty to appear.
NOTE: A subpoena for records must also be served on all parties to the action following CPLR § 2303.
A subpoena from the Civil Court of the City of New York may be served only within the City of New York or in Nassau County or Westchester County. Any service anywhere else may only be done if permitted by a Judge.
A Subpoena may be served on a Sunday. A City or State agency or a public library may be subpoenaed only by order of the court.
Any witnesses must be served a “reasonable” amount of time before the date of appearance. It is suggested that service be at least 5 days before the date of the hearing.
A City or State agency or a public library must be served at least 24 hours before the time of appearance.