How Do I Get Out of a Subpoena to Testify?
If you have been served with a federal subpoena, there are various reasons why you might prefer not to testify. Under any circumstances, providing testimony before a federal agency or in federal district court presents risks, and there is no reason to face these risks unnecessarily.
Of course, if you have been subpoenaed to testify, you cannot simply decide not to show up. If you do, you can face a motion to compel, and you can ultimately face charges for contempt of court. Under federal law, this is a criminal offense, and refusing to testify despite being ordered to do so can lead to a substantial fine and term of imprisonment.
Given that you cannot ignore a federal subpoena, how can you get out of testifying? Is it possible to get out of testifying, or do you need to start preparing? While it will be possible to avoid testifying in some cases, challenging a subpoena itself presents a number of challenges, and it often will not be possible to get out of testifying entirely.
3 Potential Grounds for Challenging a Subpoena to Testify
While subpoenas requiring testimony (referred to as subpoenas ad testificandum) are generally enforceable and are afforded a significant amount of deference by the federal courts, there are grounds to challenge these subpoenas. Depending on the issues presented, it may be possible to challenge a subpoena ad testificandum in its entirety, or it may be more feasible to seek to limit the scope of the testimony you will be required to provide.
Broadly speaking, the primary grounds for challenging a subpoena to testify fall into three categories: (i) service issues, (ii) jurisdictional issues, and (iii) issues of scope.
1. Service Issues
In order to compel testimony, a subpoena ad testificandum must be validly served. The requirements for valid service depend on the nature of the subpoena (i.e. whether it is an administrative subpoena or a judicial subpoena); and, with respect to judicial subpoenas, the jurisdiction in which the subpoena is served.
Several federal agencies have adopted rules that allow for valid service by virtually any means. For example, the U.S. Securities and Exchange Commission (SEC) allows for service in person, by delivery to the subpoenaed party’s office or residence, by mail, by fax, and by service via any of the forgoing means on the subpoenaed party’s legal counsel. State attorney general’s offices often also allow for service by various means. However, the service requirements for judicial subpoenas tend to be more limiting. In many federal jurisdictions, in-person service is required for both civil and criminal proceedings, and this is the case in many state jurisdictions as well.
If you were invalidly served with a subpoena ad testificandum, you may not be required to testify in response to the subpoena; however, you cannot ignore the subpoena, either. You must engage legal counsel to file a motion to quash in the appropriate court, and you must also be prepared for the possibility that the agency or party that sought or issued the subpoena will simply seek to have it re-served by authorized means.
2. Jurisdictional Issues
In addition to service issues, jurisdictional issues can justify motions to quash subpoenas ad testificandum as well. A jurisdictional issue exists when either (i) the court that issues a subpoena does not have jurisdiction over the matter at issue, or (ii) the court’s (or agency’s) subpoena power does not extend to authorize service of the person from whom testimony is being sought.
Similar to invalid service, if you have grounds to challenge a subpoena ad testificandum on the basis of lack of jurisdiction, you must affirmatively assert your challenge by filing a motion to quash (or, possibly, by engaging in a “meet and confer” process with the issuing agency). Also similar to invalid service, while asserting a jurisdictional issue may provide temporary relief from the obligation to testify, it is relatively unlikely that an investigating agency or litigating entity will simply give up its efforts to secure testimony in response to a jurisdictional challenge.
3. Issues of Scope
While technical issues can provide grounds to challenge a subpoena ad testificandum, so can substantive issues with the subpoena itself. In fact, in many cases, asserting substantive challenges – either in the form of a motion to quash or by engaging in negotiations with the investigating agency or litigating entity – will prove to be the most-effective means for avoiding or minimizing your obligation to provide testimony.
The specific grounds for challenging the scope of a subpoena to testify vary depending on the nature of the subpoena (i.e. administrative or judicial) and the governing law of the relevant jurisdiction. With that said, in most circumstances, the grounds for asserting a substantive challenge to a subpoena ad testificandum are as follows:
- The subpoena is overly broad. A subpoena cannot be overly broad in light of the nature of the investigation or litigation. The common reference to “fishing expeditions” applies here, and a subpoena ad testificandum cannot be used as a tool for asking open-ended questions until some form of actionable information is revealed. If your subpoena seeks information that is not reasonably related to the investigation or litigation in connection with which it was issued, then you may be able to challenge the subpoena on the basis of overbreadth.
- The subpoena is insufficiently specific. In addition to being sufficiently limited in scope, subpoenas ad testificandum must also be sufficiently specific as to the information that is being sought. When preparing to testify in response to a subpoena, you have the right to know how you need to prepare. If your subpoena is insufficiently specific as to the questions you will be asked, this may provide grounds for challenging the subpoena as well.
- The subpoena presents an undue burden. Subpoenas can also be challenged on the basis that they present an undue burden for the recipient. While this is more-commonly used as a defense to subpoenas duces tecum (subpoenas requesting documents rather than testimony), in appropriate cases it can also be used as grounds to file a motion to quash a subpoena ad testificandum. Some subpoenas require both testimony and the production of documents, and these subpoenas can often be challenged on the basis that they present an undue burden as well.
- The subpoena seeks privileged information. When testifying in response to a subpoena, you do not have to provide any information that is protected by either (i) the attorney-client privilege, or (ii) the Fifth Amendment privilege against self-incrimination. While you can assert these privileges during your testimony, in many cases it will be possible to assert these privileges in advance in an effort to either avoid appearing or to limit the questions that will be asked.
These are general overviews of three examples of potential grounds to challenge a subpoena to testify issued by a federal agency, state attorney general’s office, or state or federal court. In order to determine which of these grounds (if any) you can use to avoid testifying or limit your testimony, you will need to discuss the specific details of your subpoena with an experienced defense attorney. In order to ensure that your attorney has as much time as possible to prepare a motion to quash or “meet and confer” with the issuing agency, it will be important for you to schedule an initial consultation as soon as possible.
Negotiating a Resolution to the Federal Government’s Investigation
If you have been served with a subpoena in connection with a federal investigation, another option for avoiding the obligation to testify is to seek to negotiate a favorable resolution to the government’s inquiry. This is true whether you have received an administrative subpoena from the U.S. Department of Justice (DOJ) or another agency, or you are being subpoenaed to testify before a federal grand jury. If you can convince the agents and prosecutors handling the investigation that obtaining your testimony is not necessary to achieve a legitimate law enforcement objective, then you can avoid testifying without the need to assert a formal objection in court.
There are various strategies for favorably resolving a federal investigation without providing testimony and without charges being filed. In virtually all cases, however, the key is to execute a proactive defense. By engaging federal defense counsel to affirmatively engage in the investigative process, and by relying on your federal defense counsel to negotiate on your behalf, you can potentially avoid the obligation to testify while also eliminating any risk of facing civil or criminal charges.
Discuss Your Subpoena with a Federal Defense Lawyer at Oberheiden P.C.
Oberheiden P.C. is a federal defense law firm that represents individuals and corporate entities in civil litigation as well as state and federal law enforcement matters. If you have received a subpoena requiring your testimony, we encourage you to discuss your options with one of our senior defense attorneys promptly. To arrange a complimentary initial consultation as soon as possible, call 888-680-1745 or tell us how we can reach you online now.
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Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.