Subpoena for records

Produced by Massachusetts Law Reform Institute
Created July 2021

What is a “record” that you can subpoena?

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

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

Why would I use a Subpoena for Records?

You can use a Subpoena for Records when you need to submit records as evidence to the court. When you use a subpoena for records:

  • The records must be delivered to the court.
  • You can submit them as evidence.
  • You do not need the person who made the records to testify
  • You do not need the person who keeps the records to testify.

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.

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.

Important

A subpoena for records tells the keeper of the records to bring and deliver the records to the office of the Register of Probate at the court where your case is taking place.

How do I fill out a Subpoena to Bring Records to Court?

  1. Get the subpoena form.
  2. Write on the form:
    • 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 to court,
    • the docket number of your case, and
    • the specific records you need them to deliver to the court.

Important

Be as specific as you can when you describe the records so the person you are subpoenaing knows exactly what to bring

3. Get the subpoena notarized. What if I need to have something notarized?

4. Make 2 copies of the subpoena.

How do I serve a Subpoena to Bring Records to Court?

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

  • deputy sheriff
  • 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. But it will cost money. The court may pay the costs for service if the court approves your Affidavit of Indigency.

What does it cost to serve a subpoena?

When you use a subpoena, you have to pay a service fee to the deputy sheriff or constable.

The sheriff or constable's cost depends on the distance the sheriff or constable has to travel or how many times they have to return to a location to complete service.

If you cannot afford the costs of the subpoena, you can ask the state to pay the fees. See What if I cannot afford the cost?

How does my friend serve a subpoena for me?

You friend must be:

  • 18 or over,
  • not a witness in your case, and
  • unrelated to the person you are subpoenaing.

Give your friend:

  • the original and 2 copies of the subpoena, and
  • the witness fee

Your friend must follow these steps to make sure they serve the subpoena correctly

  1. Take the copies of the subpoena to the address on the subpoena form.
  2. Give the subpoenaed person a copy of the notarized subpoena
  3. Fill out and sign the “Return of Service” section of the subpoena. When they sign ”Return of Service” they swear that they gave the subpoena to the person they served.

Note

If the person in charge of the records is not available, leave the subpoena with a receptionist, business owner, or other person who can act as an agent of the person in charge of the records. Put the name of the person you gave it to on the “Return of Service.”

     4. Give you back the original subpoena with the Return of Service they signed

When do I have to serve the subpoena for records?

The court rules do not say that you have to give a set amount of time between the day you serve the subpoena and the day of the hearing. But give the person in charge of the records enough time to get documents together and to get to the hearing on time.

What happens after you 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
  • bring the records and signed affidavit to court by the date on the subpoena.

If you want to look at the records you subpoenaed before the hearing, you may need to make an appointment to review the documents in court. Call the Office of the Register of Probate to find out what to do.

What can someone do if they don’t want to deliver the evidence to court?

They can file a motion 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.

What happens if someone ignores a subpoena?

If the person in charge of the records does not does not deliver the record and does 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 charge of the records in “contempt of court.” The judge can force them to come to court or go to jail.

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