Criminal Law & Process, Subpoenas
Being served with a subpoena immediately leaves you with lots of questions, and the subpoena itself provides very few answers. It also provides you with very little time to get your bearings and make the decisions you need to make in order to protect yourself. If you received your subpoena by mail, or if it was left at your home or office doorstep, you may be wondering, “Does a subpoena have to be served in person?” Unfortunately, the answer to this question is, “It depends.”
In fact, whether a subpoena needs to be served in person depends on numerous different factors. These include, among others:
- What type of subpoena is it? Is it a judicial subpoena, an administrative subpoena, or an investigative subpoena from a state attorney general’s office?
- If you have been served with a judicial subpoena, was the subpoena issued by a state court or federal district court judge?
- Which jurisdiction’s law governs the service of the subpoena?
While it might not be easy to determine whether your subpoena needed to be served in person, making this determination is extremely important—particularly if you have been served as a suspect or target of a criminal law enforcement investigation. Not only can responding to a subpoena be an extremely burdensome process, but it can also be dangerous if you or your company is at risk for facing prosecution.
If your subpoena was not served in person and in-person service is required, then you may have grounds to file a motion to quash. While this may ultimately result in the subpoena simply being reissued and reserved, this can buy you all-important time, and it can give you the chance to formulate a strategic response to the government’s inquiry.
Service Requirements for State and Federal Subpoenas: When is In-Person Service Required?
When it comes to in-person service requirements for state and federal subpoenas, the rules – unfortunately – are not uniform. Not only do service requirements vary from state to state; but, even at the federal level, different courts have adopted different standards, and different agencies have established different requirements.
Dr. Nick Oberheiden
John W. Sellers
Former Senior Trial Attorney
U.S. Department of Justice
Joanne Fine DeLena
Former Assistant U.S. Attorney
Former U.S. Attorney & Former District Attorney
Local Trial & Defense Counsel
Former U.S. Attorney
Aaron L. Wiley
Former Federal Prosecutor
Former Special Agent (OIG)
Former Supervisory Special Agent (FBI)
Former Special Agent (FBI & IRS-CI)
Kevin M. Sheridan
Former Special Agent (FBI)
Former Supervisory Special Agent (FBI)
In general, service by means other than in-person delivery is referred to as “substituted service.” Some state and federal jurisdictions allow substituted service, and some do not. Additionally, while some jurisdictions allow for substituted service of subpoenas in certain types of cases, they require in-person service in others.
1. Federal Judicial Subpoenas
Under Rule 45 of the Federal Rules of Civil Procedure (FRCP), in-person service is required in most cases. Specifically, section (b)(1) of FRCP 45 states:
“Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies.”
Most federal courts have interpreted FRCP’s requirement of, “delivering a copy to the named person,” as requiring in-person service via hand delivery. However, this strict hand-delivery requirement is not universal. For example, in the 2005 case of Hall v. Sullivan, the U.S. District Court for the District of Maryland held that service via FedEx complied with FRCP 45 with respect to a subpoena duces tecum. As stated in the opinion:
“[W]here the only thing that is at stake is the production of documents, and the subpoenaed party need only object to shift the burden on the requesting party to file a motion to compel production of the requested documents, [the court sees] no reason to require in-hand delivery of subpoenas . . . . [I]t is undisputed that [the subpoenaed party] actually received the subpoena, and that upon receipt, was able to object and timely file a motion to quash . . . . It follows that delivery of the subpoena via Federal Express comported with the service requirements of Rule 45.”
In federal criminal cases, the general rule is similarly that in-person service is required. This is based on the language of Rule 17 of the Federal Rules of Criminal Procedure, which largely mirrors the language of FRCP 45:
“A marshal, a deputy marshal, or any nonparty who is at least 18 years old may serve a subpoena. The server must deliver a copy of the subpoena to the witness and must tender to the witness one day’s witness-attendance fee and the legal mileage allowance. . . .”
2. Federal Administrative Subpoenas
Administrative subpoenas are issued by federal agencies directly, and do not require judicial approval. They are powerful investigative tools, and they afford investigating agencies substantial authority to compel testimony and the production of documents in support of their efforts to pursue administrative, civil, and criminal charges.
Each federal agency that has been granted subpoena power also has the authority to establish the requirements for effecting service of administrative subpoenas. In general, agency rules tend to allow for service via means other than hand delivery, although specific requirements vary between agencies.
For example, the U.S. Securities and Exchange Commission’s (SEC) Rule 150 allows for service by all of the following means:
- Hand-delivery to the person being served;
- “[L]eaving a copy at the person’s office with a clerk or other person in charge thereof;”
- “[L]eaving a copy at the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein;”
- “[M]ailing the papers through the U.S. Postal Service by first class, certified, registered, or Express Mail delivery addressed to the person;”
- “[S]ending the papers through a commercial courier service or express delivery service addressed to the person;”
- “[T]ransmitting the papers by facsimile machine,” if agreed in advance, and if receipt is confirmed by mutually-agreed means; or
- Service on the party’s legal counsel via any of the foregoing means, if the party’s counsel has filed a notice of appearance pursuant to SEC Rule 102.
Thus, if you have been served with an SEC subpoena, the method of service was almost certainly valid. The same is true for many (but not all) of the other federal agencies that have administrative subpoena power. Again, each agency has its own rules, and it will be necessary to review the relevant set of rules in order to determine whether any particular federal administrative subpoena is valid.
3. State Judicial Subpoenas
At the state level, there is generally more acceptance of service via means other than in-person hand delivery. However, there is more variation between jurisdictions as well.
In Texas, for example, the civil rules of procedure state that, “[a] subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law.” However, the Texas Code of Criminal Procedure expressly provides that subpoena may be served by:
“(1) reading the subpoena in the hearing of the witness; (2) delivering a copy of the subpoena to the witness; (3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or (4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness . . . .”
In New York, the same rules apply to both civil and criminal subpoenas. Section 610.40 of the New York Criminal Procedure Law (CPL) provides that, “[s]ervice must be made in the manner provided by the civil practice law and rules for the service of subpoenas in civil cases.” Under Section 2103 of the New York Civil Practice Law and Rules (CVP), service may be made by hand delivery, mailing, delivery to the witness’s or party’s residence, fax, overnight delivery service, or delivery to the witness’s or party’s attorney by various means.
4. State Attorney General Subpoenas
In general state attorney general subpoenas are subject to the same rules as subpoenas in other state-level civil and criminal matters. As such, if you are facing a state attorney general investigation and you have received a subpoena, or if you have been subpoenaed as a witness, you will need to have your attorney review the relevant set of rules in order to determine whether in-person delivery is required.
If You Have Been Served with a Subpoena, You Need to Engage Defense Counsel Promptly
Regardless of the type of subpoena you have received, and regardless of the method by which it was delivered, it is important that you engage defense counsel promptly. If you have grounds to object to the subpoena but fail to do so promptly, you could be deemed to have “waived” your opportunity to challenge its method of delivery. In any case, you will need to respond to the subpoena appropriately, and you will need to make sure that you do not inadvertently or unnecessarily disclose information that could increase your risk of facing liability or prosecution.
Speak with a Subpoena Defense Lawyer at Oberheiden P.C.
Have you been served with a subpoena? Are you wondering whether the subpoena may have been served improperly or may otherwise be invalid? To speak with one of our senior defense attorneys in confidence, call 888-680-1745 or request a complimentary case assessment 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.