Understanding non-party subpoenas in Massachusetts Probate and Family court

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Sometimes, it is helpful in a family law case to have someone who isn’t part of your case give information or documents.  You can ask them to give this information by using a “subpoena.” A subpoena (pronounced supp-pee-na) is a letter that asks someone who isn't directly involved in your court case to testify under oath about a specific topic, or produce certain documents mentioned in the letter.

The person who receives this subpoena is called a "non-party witness." 

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What kinds of subpoenas are there?

There are 3 different types of subpoenas.

Testimonial Subpoena: This requires a non-party witness to testify at a specific time and place during a hearing or trial.

Deposition Subpoena: This requires a non-party witness to attend a deposition, which is like an interview under oath. It might also ask for documents or information related to the case, including electronically stored information.

Document-Only Subpoena: This requires a non-party witness to send documents. They don’t need to go to a deposition or court.  

It is a good idea to talk to a witness before you send them a subpoena. Tell them the questions you will ask them at the hearing or deposition so you know if their answers will help your case.  Make sure their testimony or written evidence will help your case before you subpoena anyone.
 

How do I write a subpoena?

When you write up a subpoena for a testimonial or deposition subpoena, you will need to include the following information:

  • The name of the person you need to come to court (the person being subpoenaed).
  • The address where a sheriff or deputy constable can find and serve them with the subpoena.
  • The name and address of the court.
  • The date and time of the hearing or deposition.
  • The title of the action and the docket number of your case.
  • The signature of the clerk, notary public, or justice of peace issuing the subpoena.
  • If you want the witness  to bring documents to the hearing or deposition, list the specific records or documents you need them to bring. Be as specific as you can.

When you write a documents only subpoena, you will need to include the following information:

  • The name of the person you need to get the records from.
  • The address where a sheriff or deputy constable can find and serve them with the subpoena.
  • The name and address of the court.
  • The deadline for delivering the records.
  • The  title of the action docket number of your case.
  • The specific records you need them to send you.
  • The signature of the clerk, notary public, or justice of peace issuing the subpoena.

All subpoenas must be notarized. See What if I need to get something notarized?

Make copies of the subpoena. You will need to send a copy of the subpoena to every party in the case. Keep a copy for yourself.

How do I serve a subpoena?

You need to let the person you want to testify or provide documents know about the court case.  This is called “serving” the subpoena.

You need someone who is not related to your case to serve a subpoena. They can be a

  • deputy sheriff
  • a constable or
  • another person unrelated to the case. This person can be a friend. They must be:
    • over 18 years old, and
    • not a witness for your case, and
    • not related to the person you are serving.

Use a deputy sheriff or constable to be sure the subpoena is served properly. Usually the fee is about $45 to $65.  If you can’t afford the service fee, you can file an affidavit of indigency and ask the court to pay these fees. See Affidavit of indigency if you can't affor court costs.

The person serving the subpoena can deliver  it in one of 3 ways:

  • Personally delivering a copy of the subpoena to the person being subpoenaed.
  • Showing it and reading it to them.
  • Leaving a copy of the subpoena at the person’s address.

If you want someone to come to testify at court or a deposition, when you serve the subpoena you also need to include:

  • A $6.00 witness fee for one day's attendance.
  • Travel expenses, based on mileage. 
    • You pay $0.10 a mile, for the round trip distance between the witness' home and the courthouse.
    • If the witness works in the city or town where the court is located, then the $0.10 a mile is the round trip distance between the witness’ work and the court.
    • Note The court rules about subpoenas limit how far someone can be required to travel to a deposition or hearing to about 50 miles.
       
What is the deadline for serving a subpoena?

There are no rules requiring a specified amount of advance notice to the non-party witness if you just want them to testify at a deposition or in court. However, you should give them enough time to get to the hearing on time.
If you are also asking for documents, you need to give the non-party witness at least 30 days.

How much time does a nonparty witness have to respond to a subpoena for records?

There are no rules requiring a non-party witness to respond to a subpoena within a certain timeframe. Generally, 30 days is a reasonable period.
 

Can the person I served a subpoena upon refuse to cooperate?

Yes. The person can file a motion not to obey the subpoena if your subpoena is “unreasonable or oppressive.”
They can also file a motion to ask the court to order you to pay their cost of producing the written evidence.
But, the person cannot just ignore a subpoena that has been served on them.

 

What happens if someone ignores a subpoena?

If the person you subpoena does not show up for the hearing, and did not file a motion to cancel or modify the subpoena, the judge can order them to appear.

Before the judge makes an order, they may ask for proof that the subpoena was served properly. The proof is the Return of Service.

The judge may hold the person in “contempt of court.” The judge can force them to come to court  or go to jail for not appearing in court.

There are also actions a person issuing a subpoena can use to enforce a subpoena against a nonparty witness. For example, if a nonparty doesn’t respond to your subpoena asking for certain documents or business records, you could file a motion to compel those records. Learn more: Probate and Family Court website; Sample motion.
 

What kinds of records can I subpoena?


Some examples of records you can subpoena to use as evidence in your case are:

  • Business records, like cell phone statements, bank statements, payroll records.
  • Medical records, like medical provider notes, list of medications, admission or discharge forms.
  • Agency records, like reports from the Department of Children and Families (DCF), Registry of Motor Vehicles, Department of Unemployment Assistance.
  • School records, like: report cards, transcripts, attendance logs.
     
Who would I subpoena for records?

Subpoena the person who is in charge of the records. The court calls this person the “Keeper of the Records".

When you subpoena records from a business, organization, or government agency, call to find out the name and title of the person who is in charge of the records. This person may be an office manager, an employee of the records department, an administrative assistant, or the manager of a business. You can learn more details about how to serve a subpoena on a corporation or government agency in the Massachusetts Rules of Civil Procedure 4(d)(2), 4(d)(3) and 4(d)(4).

If you can, talk to the person before you send the subpoena to find out what records they have. Ask them where you should send the subpoena.

What happens after I serve a subpoena for the records?

The person in charge of the records has to:

  • Gather the records you requested,
  • Complete and sign the Affidavit of the keeper of the records that was served with the subpoena, and
  • Send the records and the signed affidavit to you by the date on the subpoena.
Do I have to tell the opposing party about the subpoena?

Yes. You have to give written notice about the subpoena to every party in the case. 

  • If the subpoena is for a deposition, you have to give written notice to the other parties at least 7 days before the deposition date.
  • If the subpoena is for documents only, you need to give the other parties a copy of the subpoena before you serve it on the non-party. You can then serve the subpoena for documents on the non-party.

You also need to give a copy of the documents the non-party sends you to the other parties in the case. If the non-party objects to the subpoena, you need to share that with the other parties in the case as well.

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