Summons and subpoenas are two major legal documents used to compel individuals to appear in court. These documents, although related, serve different purposes in the legal process. Understanding the difference between a summons and a subpoena will help you know your rights and responsibilities in a given legal situation, and subsequently, respond with the appropriate course of action. 

In this article, you’ll learn what subpoena and summons are, the key differences between them, your rights and responsibilities when you’re served, common misconceptions about summons and subpoenas, and more.

Definitions and Key Distinctions

What is a Summon?

A summon is a legal document compelling an individual to appear in court in response to criminal or civil charges leveled against them. The court usually issues this document to the individual at the beginning of their lawsuit to notify them that someone has taken a legal action against them. A typical summon should include:

• The name of the court that issued the summons
• The name of the defendant (the individual who receives the summon)
• The name of the plaintiff (the individual who made the lawsuit)
• The court date and time for the hearing
• Court case number
• The location of the court.

If you ignore a summon, the court will issue a judgment in favor of the complaint of the plaintiff without your defense. Hence, you will lose the case and become liable to the plaintiff’s claim.

What is a Subpoena?

Subpoena is a court order compelling an individual or organization to testify or produce a document in a court proceeding. An attorney or a legal enforcement agent can use a subpoena to secure relevant evidence or records for their investigations and court proceedings.

Failure to comply with a subpoena is considered contempt of court order and can result in legal consequences such as imprisonment or imposition of a fine. 

There are two types of subpoena:

• Subpoena Ad Testificandum: the Latin word, Subpoena ad testificandum means “come and testify”. This type of subpoena requires the individual to produce testimony in the legal proceeding.
• Subpoena Duces Tecum: This requires the individual to produce documents or evidence in a court proceeding. Hence, the Latin word, subpoena Duces tecum, which translates in English as “bring the document”.

Rights and Responsibilities of the Recipient of Summons vs Subpoena

If you received a summon, you have the responsibility to respond within the specified time period. Appearing in court on the specified date and time is crucial to avoid losing the case or even incurring an additional charge — contempt of court. Depending on the type of case filed, you may need to hire an attorney to represent you and defend your rights throughout the court proceedings.

On the other hand, at the receipt of a subpoena, you have the right to challenge the validity of the document if you have reasonable grounds. Common reasonable grounds may include irrelevance of the testimony or documents to the case, overly broad requests, subpoena not properly served, human rights violation, or lack of adherence to court procedure.

You also have the right to seek a protective order from the court to limit the scope of the subpoena in the following situations:

• Request of Personal Information: when the subpoena requests information that you believe is too sensitive such as private chats, calls, or confidential records.
• Proprietary Information: when the subpoena requests the disclosure of intellectual properties, patents, trade secrets, customer data, business plans, or other exclusively valuable information or data confidential to a business.
• Violation of Constitutional Rights: when compliance with a subpoena violates any of your constitutional rights.
• Unreasonable, Unrealistic, or Burdensome Request: when the subpoena requires you to put in efforts detrimental to your life or business, or is unrealistic such as producing a document you no longer have access to.

To seek a protective order against a subpoena, consult an attorney to provide you with guidance and help you navigate the process. The attorney may help you review the subpoena to understand the scope of the request and identify the proper legal ground to request a protective order.

Common Misconceptions About Summons and Subpoenas

Several widespread misconceptions about summons vs subpoena have resulted in confusion and unplanned legal consequences. Let’s explore some of these misconceptions:

Common Misconceptions About Summons

• You only have to respond to the summons if you’re guilty: Even if you believe you’re innocent, you still have to respond to a summon on the specified date. The court will grant you a fair hearing to defend yourself against the complaints.
• You can ignore summons without incurring legal consequences: If you fail to respond to a summon, the plaintiff could get a default judgment on the case and you’d serve any legal consequence pronounced in the verdict.
• You don’t need to hire an attorney: In most cases, you need an attorney to represent you, unless you’re an attorney or experienced in the complexities of lawsuit.
• Summons is the same as Subpoena: Although they demand the recipient’s appearance in court, they serve different purposes and require different procedures for issuance.

Common Misconceptions about Subpoenas

• You must comply with a subpoena even if you don’t want to: The recipient of a subpoena has the right to file a motion challenging the validity of a subpoena. Upon the consideration of the motion, the court may quash the subpoena.
• You can ignore a subpoena: You don’t have the option of ignoring a subpoena. You’re usually given some weeks to object to the subpoena or prepare your testimony or documents. Failure to comply with a subpoena is considered contempt of the court.
• You’re responsible for the costs of complying with a subpoena: You’ll receive reimbursement for the costs incurred for complying with a subpoena such as transport and accommodation costs.
• You must answer all questions or produce all the documents requested by the subpoenaing party: You have the right to seek a protective order to limit the scope of the requests and you can also refuse to answer questions you consider confidential or irrelevant.
• You can testify against yourself: The Fifth Amendment protects you from having to testify if you may incriminate yourself through the testimony.

How to Respond to a Summons vs. a Subpoena

When you receive a summons or subpoena, there are steps you should take in response to these notices. Let’s consider these steps below:

Responding to a Summons

• Read the Summons thoroughly: Read the summons thoroughly to understand the document, including the name of the plaintiff, the nature of their complaints against you, and the specified response deadline.
• Consult your attorney: While reading the summons, you’re likely to encounter some legal jargon you may not understand, or have other serious concerns about the summons. So, you need an attorney to help review the summons and understand the plaintiff’s claim against you. The attorney will also help create a possible course of action for your defense.
• File a counterclaim: File a response to the document denying or admitting the allegations made by the plaintiff. Include your name, contact, the court, and the case number.
• Prepare for court proceeding: Be prepared for a court hearing and present your case. Ensure you work with your attorney to develop an effective defense strategy. Also, maintain transparent communication with your attorney so they can provide you with effective legal representation.

Responding to a Subpoena

• Read the subpoena thoroughly: Read the subpoena thoroughly to understand the requests; the documents or records you’re required to present. Also, note the response deadline and set a reminder for it.
• Consult your attorney: If you have concerns about the subpoena, consult an attorney for clarification. Your attorney will help review the document and understand the scope of the request. The attorney will also help determine if the document is legally valid, properly served, or whether there’s any legal ground to object to it.
• File a motion to quash the Subpoena: If you believe that compliance with the requests in the subpoena violates your rights, or may result in the disclosure of sensitive or privileged information, you can file a motion to quash the subpoena.
• Comply with the court requests: If there’s no valid legal ground to object to the subpoena, or the court invalidates your objections, you have to comply with the subpoena. Produce the requested documents and present them on the specified date.

Practical Examples of Use of Summons and Subpoenas

Below are real-life situations where summons and subpoenas have played crucial roles:

Enron Scandal

Enron, an energy company based in Houston, Texas, went bankrupt in 2001 following fraudulent accounting practices. The bankruptcy rendered about 20,000 employees jobless and worse still, ripped them of their life savings as the company’s pension fund was also cleared.

One of the principal perpetrators of the accounting fraud, Jeff Skilling, the CEO of the company, was summoned following 35 count charges of fraud. Although he denied the knowledge of any accounting fraud under his watch, he was convicted and sentenced to 24 years in prison which was later reduced to 14 years on appeal.

Russian Meddling in the 2016 Election

In 2016, some Russian hackers interfered with the US election, hacking Hillary Clinton’s campaign and releasing politically damaging information such as propaganda on the internet. With the evidence gathered by special counsel, Robert Mueller, the goal of the Russian hackers was to damage Hillary’s campaign, boost Trump’s chance of winning, and create confusion in American democracy.

Robert Mueller issued subpoenas to several individuals and organizations including the Trump organization, some Russian foreign nationals, and a social media expert who worked for Rogers Stone, a former Trump adviser. This has led to many indictments and guilty pleas, including Trump’s former lawyer, Michael Cohen, who pleaded guilty in 2018.

International Variations

Each country has its unique legal system and therefore handles all legal papers, summons and subpoenas differently. For example:

In the U.S, a subpoena can be issued by an attorney with the court’s approval and can be served by a certified private process server, sheriff or law enforcement agent. Failure to respond appropriately is considered contempt of court.

In the UK, the subpoena is called a witness summon and served by a process server or judicial officers. The court issues witness summons when the witness fails to voluntarily attend court at the request of the prosecution. The individual may also refuse to comply with the witness summon if they have “just excuse”, otherwise, they would be held in contempt of court.

Countries like Argentina and Mexico do not allow electronic service but rely on personal service.

Final Thoughts

Summons is a legal document notifying an individual about a lawsuit, commanding their appearance in court, while a subpoena compels the individual to appear in court to testify or produce a document. Seeking legal guidance at the receipt of any of these documents is crucial for a proper understanding of the requests, and how to navigate the process.