Subpoena (Duces Tecum & Ad Testificandum)
Compel a non-party witness to testify at deposition/trial or produce documents — a critical tool for obtaining third-party evidence.
Overview
A Subpoena is a court-issued writ commanding a person to appear and testify (Subpoena Ad Testificandum), to produce documents or tangible things (Subpoena Duces Tecum), or both. While discovery devices like interrogatories and RFPs are served on parties, a subpoena is the mechanism to compel NON-PARTIES — former servicers, title companies, appraisers, mortgage brokers, prior owners, witnesses — to provide testimony or documents. In foreclosure defense, subpoenas are critical for: obtaining loan origination files from the original lender or broker, payment histories from prior servicers, title reports and assignment records from title companies, and expert reports or appraisals. Subpoenas carry the force of law — failure to comply is contempt of court.
Purpose
- •Compel non-party witnesses to appear for deposition or trial testimony
- •Obtain documents from non-parties (prior servicers, title companies, mortgage brokers)
- •Require production of business records with authentication (Records Affidavit)
- •Command appearance of witnesses who are beyond the court's subpoena power for party-witnesses
- •Preserve evidence held by third parties before it is lost or destroyed
When to File
Issue subpoenas during discovery — after written discovery identifies relevant non-parties, but with sufficient time for compliance before the discovery cutoff. A Subpoena Duces Tecum must give the recipient at least 30 days to respond (or a shorter reasonable time set by the court). Deposition subpoenas require reasonable notice (typically 14-21 days).
Timeline
Documents: 30 days or reasonable time set by court. Deposition: Reasonable notice (typically 14-21 days). Service: Must be personal (not mail). Motion to quash: 14 days after service or before the compliance date (whichever is earlier).
Key Elements & Requirements
Court caption: Name of the court, case number, and parties
Command: 'YOU ARE COMMANDED to [appear and testify] [produce documents] at [time] on [date] at [location]'
For Duces Tecum: Detailed description of documents or categories of documents to be produced
Witness fees: Include the statutory witness fee and mileage (required for valid service)
Certificate of service: Proof the subpoena and fees were properly served
Issued by: Court clerk or attorney (attorneys can issue subpoenas under FRCP 45(a)(3))
Legal Standard
Under FRCP 45, subpoenas may command: (1) attendance at a deposition, hearing, or trial, (2) production of documents, electronically stored information, or tangible things, or (3) inspection of premises. A subpoena must issue from the court where the action is pending. Service requires personal delivery (not mail). The subpoena must include the required witness fee ($40/day under 28 USC § 1821) plus mileage. Subpoenas are subject to the same relevance and proportionality limits as other discovery.
Strategy & Tips
Identify non-party targets through written discovery first — the lender's disclosures and interrogatory answers should reveal which entities previously serviced or owned your loan, which title company handled closings, and which brokers originated the loan. Issue subpoenas early enough that responses arrive before the discovery cutoff. For business records, use a Records Affidavit subpoena — the custodian provides an affidavit authenticating the records in lieu of appearing for a deposition. If a subpoena recipient objects or moves to quash, respond promptly.
Court Filing Information
Where to File
Subpoena is issued by the court clerk (or attorney under FRCP 45(a)(3)). Proof of service is filed with the court.
Fees
Witness fee: $40/day + mileage (federal). Issuance fee: varies by court. Service fee (process server): $50-$150.
Format
Standard subpoena form (AO 88 for federal court) or state equivalent.
Copies Required
Original subpoena + witness fee served on the witness. Copy to all parties. Proof of service filed with court. KEEP YOUR COPY.
Frequently Asked Questions
What's the difference between a Subpoena and a Subpoena Duces Tecum?+
A Subpoena (Ad Testificandum) commands the person to APPEAR AND TESTIFY. A Subpoena Duces Tecum commands the person to PRODUCE DOCUMENTS (and may also command appearance). In practice, you often combine both — a single subpoena commanding the person to appear, testify, AND bring specified documents. Use Duces Tecum alone (without testimony) when you only need the documents and don't need to question the custodian.
Can I subpoena the lender's CEO or a high-level executive?+
Subpoenas to high-level executives (apex depositions) are disfavored and may be quashed if the executive lacks unique personal knowledge and the information can be obtained from lower-level employees. Before subpoenaing a CEO, exhaust other discovery sources. If the CEO has unique personal knowledge (e.g., was directly involved in a specific decision affecting your loan), apex deposition rules may be overcome.
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