1. Identify the Subpoena and the Rule That Governs It
Start with the subpoena itself. Check the issuing court or authority, the underlying proceeding, the return or compliance date, where compliance is required, and whether the demand seeks testimony, records, or both. These details determine which procedural rules and deadlines apply.
New York Civil and Criminal Subpoenas Follow Different Rules
In New York civil litigation, subpoenas are governed principally by CPLR Articles 23 and 31. For certain discovery subpoenas seeking documents, CPLR 3122 generally provides 20 days after service to serve specific written objections. A motion to quash, modify, or impose conditions under CPLR 2304 must be made promptly.
New York criminal subpoenas follow CPL Article 610. The evidence or testimony sought must be reasonably likely to be relevant and material, and a subpoena may be challenged when it is overbroad or unreasonably burdensome.
Federal Subpoenas Use Separate Deadlines
Federal civil subpoenas are governed by Federal Rule of Civil Procedure 45. For a document subpoena, written objections generally must be served before the earlier of the compliance date or 14 days after service. Rule 45 also addresses privileged material, undue burden, geographic limits, and reasonable time to comply.
Federal criminal subpoenas instead fall under Federal Rule of Criminal Procedure 17. They do not use the same general 14-day objection rule. A court may quash or modify a document subpoena when compliance would be unreasonable or oppressive.
A Subpoena Is Not the Same As a Summons
A subpoena generally commands testimony, evidence, or both. A summons performs a different procedural function, such as notifying a defendant of a civil action or directing an appearance in a criminal matter.
Receiving a subpoena also does not necessarily mean the recipient is a defendant. Witnesses, employees, former employees, records custodians, and other third parties can receive subpoenas.
2. Preserve Responsive Evidence before Deciding What to Produce
Once a subpoena seeks identifiable records, potentially responsive material should not be deleted, altered, concealed, or selectively destroyed while the demand is being reviewed. Preservation does not mean that every preserved item must ultimately be produced.
Preservation and Production Are Different Decisions
A subpoena may reach emails, text messages, contracts, financial records, business files, or other electronically stored information. The first task is to preserve potentially responsive material and determine where it is located.
The production decision comes next. Scope, possession or control, privilege, applicable protections, and valid objections may narrow what ultimately must be disclosed.
Privileged Material Requires Separate Review
New York recognizes attorney-client privilege under CPLR 4503 and attorney work product protections under CPLR 3101(c). In civil discovery, a person withholding responsive material based on privilege may also have obligations to identify the basis for withholding it without disclosing the privileged substance itself.
A confidentiality agreement is different from privilege. An NDA or private confidentiality clause does not, by itself, allow someone to disregard compulsory legal process.
Criminal Exposure Can Change the Production Analysis
A person who may face criminal exposure should not assume that the Fifth Amendment permits blanket refusal of a subpoena.
Preexisting voluntarily created documents are not protected merely because their contents are incriminating. In some circumstances, however, producing documents may itself communicate facts about their existence, possession, or authenticity. This act of production can raise a separate self-incrimination issue.
The distinction can become especially important when the subpoena recipient is also a suspect, defendant, or potential target of an investigation.
3. Decide Whether to Comply, Object, or Challenge the Subpoena
A subpoena is compulsory process, but that does not make every demand enforceable exactly as written. The appropriate response may involve production, testimony, written objections, negotiated limits, or an application to the appropriate court.
New York Provides Procedures to Challenge Civil Subpoenas
Under CPLR 2304, a recipient may seek to quash, modify, or impose conditions on a subpoena. When a subpoena is not returnable in court, New York procedure generally requires a request to withdraw or modify it to be made to the issuer before seeking judicial relief.
Ignoring a subpoena is different from challenging it through the proper procedure. Failure to comply with an enforceable New York subpoena can lead to enforcement proceedings and, in some circumstances, contempt or other statutory consequences.
Criminal Subpoenas Require Particular Attention to Scope
N a New York criminal case, a subpoena should seek testimony or evidence reasonably likely to be relevant and material. A subpoena that is excessively broad or unreasonably burdensome may be subject to challenge.
When the recipient also faces potential criminal exposure, the response should address both the obligation created by the subpoena and the consequences of testimony or document production.
Federal and Agency Subpoenas Require Separate Analysis
Federal civil and criminal subpoenas follow their respective federal procedural rules. Administrative subpoenas may arise under separate federal or state statutes and agency regulations.
A response period or objection procedure that applies to one type of subpoena should not be assumed to govern another. The issuing authority and applicable procedural rule should be identified before deciding how to respond.
4. Frequently Asked Questions
Can a Subpoena Require My Emails, Text Messages, or Phone Records?
Potentially. A subpoena may seek electronically stored information such as emails, text messages, business communications, or other digital records when the applicable procedural rules permit the demand.
That does not mean every digital record must be produced. The scope of the request, possession or control, privilege, applicable protections, and objections can affect production. Potentially responsive data should be preserved while those issues are evaluated.
Do I Need an Attorney If I Receive a Subpoena?
Not every subpoena requires representation, but attorney review can become particularly important when the subpoena seeks privileged material, involves substantial records, appears overbroad, or overlaps with possible criminal exposure.
An attorney can identify whether New York or federal rules apply, calculate the relevant deadline, review privilege and self-incrimination issues, and determine whether an objection, modification request, or motion to quash is available.
5. Review the Subpoena before the Compliance Date
A subpoena response should begin with the actual document and the law governing it. Confirm who issued it, what proceeding it relates to, the relevant dates, what testimony or evidence it demands, and whether protected or potentially incriminating material is involved.
When a subpoena reaches sensitive evidence or overlaps with a criminal investigation, an attorney can evaluate the response before testimony is given or records are produced. The immediate priorities are to preserve responsive evidence, avoid unnecessary disclosure of protected material, and use the proper procedure if the subpoena should be limited or challenged.
28 Sep, 2026
