What is a subpoena in Colorado?
A subpoena is a court order mandating a potential witness to appear at a hearing or deposition on a specific time and date. And a subpoena duces tecum is a court order to produce documents or other tangible things listed in the subpoena. (The subpoena will specify whether the recipient may mail or drop off the requested documentary evidence to court without having to personally appear.)
Issuance of subpoenas can be requested by either the:
- judge,
- clerk of the court,
- defense lawyer, or
- prosecutor (or prosecutor’s investigator)
In order to be valid, subpoenas also must contain such information as the court name, case name, and case number.1
Who serves subpoenas? Who accepts service?
Subpoenas in the state of Colorado must be served by an adult 18 and older who is not a party to the case. In many cases, service of a subpoena is performed by:
- law enforcement officers;
- investigators; or
- professional process servers
Service of the subpoena must be made on the person named in the subpoena. But if the named witness is a juvenile (under 18), then personal service of process must be made on the child’s parent or legal guardian.2
What happens if I ignore a subpoena?
Properly-subpoenaed witnesses who fail to follow a subpoena’s instructions risk the Colorado court issuing a bench warrant for their arrest and being found in contempt of court. This can carry fines and/or jail.3
Should I get my own attorney if I am subpoenaed?
Anyone who is subpoenaed in a civil action or criminal case is advised to consult with their own attorney, especially if there is a chance that the witness testimony could be self-incriminating. The witness’s attorney can attend the hearing or deposition and advise him/her when to keep quiet on Fifth Amendment grounds.4
Can I quash or modify the subpoena?
People who have been subpoenaed in Colorado state court can file a motion with the court to quash or modify the subpoena request. The court must quash or modify it when either:
- The subpoena does not allow the witness a reasonable time to comply; or
- The subpoena requires the witness to attend a deposition in any county other than where the person resides or is employed or transacts his/her business in person, or at such other convenient place as is fixed by an order of court;
- The subpoena requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
- The subpoena subjects the witness to an undue burden.
Meanwhile, the judge may quash or modify a subpoena by order of the court when either:
- The witness’s testimony would disclose a trade secret or other confidential research, development, or commercial information; or
- The subpoena requires that an unretained expert would provide his/her opinion or information that does not describe specific matters in dispute and results from the expert’s study that was not requested by a party.
If either of the above two situations applies, the judge can choose to enforce the subpoena if the issuing party both:
- shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
-
ensures that the subpoenaed person will be reasonably compensated.5
If a subpoenaed party does suffer an undue burden, the court may impose sanctions – including attorney fees – on the issuing party.
Legal References
- Colorado Rule of Civil Procedure 45 subsection (b)(1)(C) – Subpoena for production of documents. C.R.C.P. 45(a)(1)(A)(VII) – Production of records. See also Instructions for Issuing a Subpoena, Colorado Judicial Branch. See also the Federal Rules of Civil Procedure 45.
- C.R.C.P. 45(b). Therefore, the subpoenaing party may not serve a subpoena. See also C.R.C.P. 4 for proof of service rules. See C.R.C.P. 26(c) for protective orders in discovery. See C.R.C.P. 45(e)(2) for nonresidents of this state. See also Isis Litig., L.L.C., v. Svensk Filmindustri, (Colo. App. 2007) 170 P.3d 742 (Personal delivery of interrogatories on foreign corporation’s registered agent constitutes effective service). Note that immediately following service of a subpoena, the subpoenaing party shall serve a copy of the subpoena on all parties in the case pursuant to C.R.C.P. 5.
- C.R.C.P. 45(f).
- See Fifth Amendment.
- C.R.C.P. 45(c). See also C.R.C.P. 45(c)(2)(B) for production of privileged records. See also Fogel v. Bankoff (Colo. 2021) 484 P.3d 788. See also Tulips Invs., LLC v. State ex rel. Suthers (Colo. 2015) 340 P.3d 1126.