Subpoena for Deposition - Family Law

SUBPOENA FOR DEPOSITION - FAMILY LAW

COURT CAPTION

IN THE [________________________________] COURT
[________________________________] COUNTY, STATE OF [________________________________]
FAMILY DIVISION

________________________________________

In re the Marriage of / In the Matter of:

[________________________________],
Petitioner, Case No.: [________________________________]

v. Division: [________________________________]

[________________________________], Judge: [________________________________]
Respondent.
________________________________________

PART I: SUBPOENA INFORMATION AND PREPARATION WORKSHEET

A. Case Information

B. Issuing Attorney / Party Information

C. Witness / Recipient Information

PART II: SUBPOENA COMMAND

THE PEOPLE OF THE STATE OF [________________________________] TO:

[________________________________] (Name of Witness/Custodian of Records)

YOU ARE HEREBY COMMANDED:

☐ TO APPEAR AND TESTIFY at a deposition in the above-captioned action at the date, time, and location specified below.

☐ TO PRODUCE DOCUMENTS AND THINGS described in the attached Schedule A at the date, time, and location specified below, or to mail them to the issuing attorney at the address above at least [____] days before the deposition date.

☐ TO APPEAR, TESTIFY, AND PRODUCE DOCUMENTS AND THINGS (both testimony and document production) at the date, time, and location specified below.

DEPOSITION DETAILS

Date: [__/__/____]

Time: [________________________________] (☐ a.m. / ☐ p.m.)

Expected Duration: [________________________________] hours

Location:

☐ In Person:
[________________________________]
[________________________________]
[________________________________]
(Street Address, Suite/Floor, City, State, ZIP Code)

☐ Remote via Videoconference:
Platform: [________________________________]
Meeting Link: [________________________________]
Meeting ID: [________________________________]
Passcode: [________________________________]

Recording Method:
☐ Stenographic transcription
☐ Videotape recording
☐ Stenographic and video recording
☐ Remote videoconference with stenographic transcription
☐ Other: [________________________________]

Court Reporting Service:
[________________________________]
[________________________________]
(Name, Address, Telephone)

GEOGRAPHIC LIMITATIONS ON SUBPOENAS

Under FRCP 45(c), a subpoena may command a person to attend a deposition within 100 miles of where the person resides, is employed, or regularly transacts business in person. State rules may differ:

• California: CCP Section 2025.250 provides that a deposition must be taken within 75 miles of the deponent's residence, unless the court orders otherwise.
• New York: CPLR Section 3110 provides that a deposition shall be held within the county in which the witness resides or is employed, or within a neighboring county.
• Texas: TRCP Rule 199.2(b)(2) provides that a non-party witness may be compelled to attend a deposition within 150 miles of the witness's residence or where the witness was served.
• Florida: FRCP 1.310(b)(4) provides for depositions within the county of the witness's residence.

If the witness resides outside the geographic limits, a commission, letters rogatory, or a subpoena issued from the court of the witness's jurisdiction may be required.

PART III: SCHEDULE A - DOCUMENTS AND THINGS TO BE PRODUCED

If document production is requested, the witness/custodian of records is commanded to produce the following documents and tangible things:

Category 1: Employment and Income Records (For Employer Witnesses)

1. All employment records, personnel files, and human resources records for [________________________________] (party name) for the period from [__/__/____] through the present.
2. All pay stubs, earnings statements, and payroll records for [________________________________] for the last twenty-four (24) months.
3. All W-2 forms, 1099 forms, and year-end tax reporting documents issued to [________________________________] for the last three (3) tax years.
4. All records of bonuses, commissions, overtime, stock options, restricted stock units, equity grants, profit-sharing, and any other supplemental compensation paid to [________________________________].
5. All employment benefit records, including health insurance enrollment, retirement plan contributions (employer and employee), life insurance, disability insurance, and any other fringe benefits provided to [________________________________].
6. All records of expense reimbursements paid to [________________________________] during the last twenty-four (24) months.
7. All records reflecting the terms of any company vehicle, housing allowance, travel allowance, or other in-kind compensation provided to [________________________________].

Category 2: Financial Institution Records (For Bank/Brokerage Witnesses)

8. All account statements for any account held individually or jointly by [________________________________] for the last thirty-six (36) months, including checking accounts, savings accounts, money market accounts, certificates of deposit, brokerage accounts, and investment accounts.
9. All records of wire transfers, cashier's checks, and money orders in excess of $500 issued from or deposited into any account held by [________________________________] during the last thirty-six (36) months.
10. All records of new account openings or account closures by [________________________________] during the last thirty-six (36) months.
11. All safe deposit box rental agreements, access logs, and related records for any safe deposit box rented by [________________________________].
12. All loan applications, loan agreements, and promissory notes for any loans issued to or by [________________________________] during the last five (5) years.
13. All records of automatic transfers, recurring payments, or standing instructions on any account held by [________________________________].

Category 3: School and Educational Records (For School/Childcare Witnesses)

14. All enrollment records, attendance records, report cards, progress reports, and transcripts for [________________________________] (child's name) for the last three (3) academic years.
15. All Individualized Education Plans (IEPs), 504 Plans, and special education evaluations for [________________________________] (child's name).
16. All records of disciplinary actions, behavioral incidents, suspensions, or expulsions for [________________________________] (child's name).
17. All records of parent-teacher conferences, parent communications, and emergency contact information on file for [________________________________] (child's name).
18. All tuition invoices, payment records, and financial aid records for [________________________________] (child's name) for the last three (3) academic years.
19. All records identifying which parent(s) or guardian(s) have been authorized to pick up, drop off, or otherwise interact with [________________________________] (child's name) at the school or childcare facility.

Category 4: Healthcare and Medical Records (For Healthcare Witnesses)

20. All medical records, treatment records, clinical notes, and hospital records for [________________________________] (party or child name) for the last five (5) years.
21. All billing records, insurance claims, explanation of benefits (EOBs), and payment records for medical services provided to [________________________________].
22. All prescription records and pharmacy records for [________________________________] for the last three (3) years.
23. All mental health treatment records, therapy notes, psychiatric evaluations, and substance abuse treatment records for [________________________________] (subject to applicable privileges and statutory protections).
24. All records of diagnostic testing, laboratory results, and imaging studies for [________________________________].

Category 5: Insurance Records (For Insurance Company Witnesses)

25. All policy documents, declarations pages, and endorsements for any insurance policy covering [________________________________], including health insurance, life insurance, auto insurance, homeowner's insurance, and umbrella/excess liability insurance.
26. All claims history and claims records for any insurance policy covering [________________________________] for the last five (5) years.
27. All beneficiary designation records for any life insurance or annuity policy insuring or owned by [________________________________].
28. All premium payment records and billing records for any insurance policy covering [________________________________].

Category 6: Real Property Records (For Appraiser/Agent Witnesses)

29. All appraisals, comparative market analyses (CMAs), or broker price opinions for any real property owned by or associated with [________________________________].
30. All listing agreements, purchase agreements, and closing documents for any real property bought or sold by [________________________________] during the last five (5) years.
31. All rent rolls, lease agreements, and property management records for any rental property owned by [________________________________].

Category 7: Business Records (For Business Partner/Accountant Witnesses)

32. All business tax returns (partnership, S-corporation, C-corporation, LLC) for any business in which [________________________________] has an ownership interest, for the last three (3) fiscal years.
33. All profit and loss statements, balance sheets, general ledgers, and financial statements for any such business for the last three (3) fiscal years.
34. All records of distributions, draws, salary, bonuses, or other compensation paid to [________________________________] by any such business.
35. All operating agreements, partnership agreements, shareholder agreements, and bylaws for any such business.
36. All business valuation reports or appraisals prepared for any such business.

Category 8: Law Enforcement and Government Records

37. All police reports, incident reports, arrest records, and investigation files involving [________________________________] or the other party during the Relevant Period.
38. All records of child protective services (CPS) investigations, reports, and findings involving either party or the minor children.
39. All records of restraining orders, protective orders, or orders of protection issued to or against [________________________________].

Category 9: Other Documents

40. All documents, records, and communications between the witness and either party that are relevant to the issues in this case, including income, assets, debts, custody, parenting, and the children's welfare.
41. Any other documents or records referenced in the Notice of Deposition or Requests for Production served in this action.

PART IV: WITNESS FEES AND MILEAGE

Under applicable law, a witness subpoenaed to attend a deposition is entitled to receive witness fees and mileage. The tendering of fees at the time of service is required in most jurisdictions.

Witness Fee Requirements by Jurisdiction:
- Federal (28 U.S.C. Section 1821): $40.00 per day attendance fee, plus mileage at the rate allowed by the General Services Administration.
- California (CCP Section 2020.230; Govt. Code Section 68093): $35.00 per day attendance fee, plus $0.20 per mile (or current rate).
- New York (CPLR Section 8001): $15.00 per day attendance fee, plus $0.23 per mile.
- Texas (TCPRC Section 22.001): $10.00 per day attendance fee, plus $0.10 per mile.
- Florida (F.S. Section 92.142): $5.00 per day attendance fee, plus mileage at the rate provided by F.S. Section 112.061.

☐ Witness fees and mileage were tendered at the time of service.
☐ Witness fees and mileage were mailed to the witness on [__/__/____].
☐ Witness fees and mileage are not required under applicable rules (e.g., party-deponent).

PART V: SERVICE OF SUBPOENA

Service Requirements

A subpoena must generally be served by personal delivery to the witness. Some jurisdictions allow alternative methods of service:

• FRCP 45(b)(1): Serving a subpoena requires delivering a copy to the named person and tendering the fees for one day's attendance and mileage.
• California (CCP Section 2020.220): Personal service is required. Service must be completed a sufficient time in advance to allow the witness a reasonable time to prepare and travel to the deposition.
• New York (CPLR Section 2303): Service by delivery to the witness in person.
• Texas (TRCP Rule 176.5): Service by any person over 18 who is not a party to the suit. Service may be by personal delivery, certified mail (return receipt requested), or registered mail.
• Florida (FRCP 1.410(d)): Service by any person authorized by law to serve process, or by any person over 18 who is not a party.

Service Information

PART VI: PROOF OF SERVICE / AFFIDAVIT OF SERVICE

PROOF OF SERVICE / AFFIDAVIT OF SERVICE

STATE OF [________________________________]
COUNTY OF [________________________________]

I, [________________________________], being duly sworn (or declaring under penalty of
perjury), state the following:

1. I am over the age of 18 and not a party to this action.

2. On [__/__/____], at approximately [________________________________] (time),
   I served the within SUBPOENA FOR DEPOSITION on:

[________________________________] (Name of Witness)

at the following location:

[________________________________]
[________________________________]
[________________________________]
(Address where service was made)

3. Service was made by:
   ☐ Personal delivery to the witness named above.
   ☐ Leaving the subpoena with [________________________________] (name), a person
   of suitable age and discretion at the witness's usual place of residence/business,
   and thereafter mailing a copy to the witness at the same address.
   ☐ Certified mail, return receipt requested, at the address stated above.
   ☐ Other: [________________________________]

4. Witness fees and mileage in the amount of $[________________________________]
   ☐ were tendered to the witness at the time of service.
   ☐ were enclosed with the subpoena.
   ☐ were not tendered (state reason): [________________________________]

5. Description of person served:
   ☐ Male ☐ Female
   Approximate age: [____]
   Approximate height: [________________________________]
   Approximate weight: [________________________________]
   Hair color: [________________________________]
   Distinguishing features: [________________________________]

I declare under penalty of perjury under the laws of the State of
[________________________________] that the foregoing is true and correct.

Executed on: [__/__/____]

At: [________________________________] (City, State)

______________________________
[________________________________]
Process Server / Person Serving Subpoena

Registration/License No. (if applicable): [________________________________]

PART VII: NOTICE TO PARTIES

Notice to All Parties and Counsel of Record

NOTICE TO ALL PARTIES AND COUNSEL OF RECORD

Pursuant to FRCP 45(a)(4) (or the analogous state rule), notice is hereby given that
the undersigned has issued a subpoena commanding:

[________________________________] (Name of Witness)

to:
☐ Appear and testify at a deposition
☐ Produce documents as described in the attached Schedule A
☐ Both appear and produce documents

on [__/__/____] at [________________________________] (time) at the location specified
in the subpoena.

A copy of the subpoena is attached hereto for your reference.

Dated: [__/__/____]

______________________________
[________________________________]
Attorney for [☐ Petitioner / ☐ Respondent]
Bar No.: [________________________________]

PART VIII: INSTRUCTIONS FOR THE WITNESS

Your Rights and Obligations Under This Subpoena

1. Duty to Comply. You are legally required to comply with this subpoena. Failure to comply without adequate excuse may result in being held in contempt of court, subject to fine or imprisonment.

2. Objections. If you believe that compliance with this subpoena would be unreasonable, oppressive, or would require disclosure of privileged information, you may:
   - Contact the issuing attorney to discuss your concerns.
   - File a motion to quash or modify the subpoena with the court before the date set for compliance.
   - Under FRCP 45(d)(2)(B), a written objection must be served on the party or attorney who issued the subpoena before the earlier of the time specified for compliance or 14 days after the subpoena is served.

3. Privilege. If any document requested is protected by privilege (attorney-client, doctor-patient, psychotherapist-patient, etc.), you must provide a privilege log identifying the document and the privilege claimed. Do not produce privileged documents.

4. HIPAA and Other Privacy Protections. If you are a healthcare provider, you may require a valid authorization from the patient, a court order, or a qualified protective order before producing protected health information under HIPAA (45 C.F.R. Section 164.512(e)).

5. FERPA Protections. If you are an educational institution, the Family Educational Rights and Privacy Act (20 U.S.C. Section 1232g) may limit disclosure of student records without parental consent or a court order.

6. Costs. You are entitled to receive witness fees and mileage. If the subpoena requires you to produce documents, the issuing party must bear the reasonable costs of production.

7. Confidential Information. If you are concerned about the confidentiality of records being produced, you may request that the parties enter into a stipulated protective order or you may request that the court issue a protective order.

PART IX: CERTIFICATE OF SERVICE ON PARTIES

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing
SUBPOENA FOR DEPOSITION (and/or notice of issuance of subpoena) on the following
party/counsel of record by the method indicated below:

☐ Personal Service
☐ United States Mail, First Class, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Overnight Delivery Service
☐ Electronic Service via [________________________________]
☐ Facsimile to [________________________________]
☐ Email to [________________________________]
☐ Court Electronic Filing System (e-filing)

Served upon:

[________________________________]
[________________________________]
[________________________________]
[________________________________]
(Name, Address, Telephone, Email of Opposing Party or Counsel)

______________________________
[________________________________]
Attorney for [☐ Petitioner / ☐ Respondent]
Bar No.: [________________________________]

Date: [__/__/____]

PRACTICE NOTES AND GUIDANCE

Purpose of Subpoenas in Family Law

Subpoenas are essential tools for obtaining testimony and documents from non-party witnesses in family law cases. While discovery requests (interrogatories, requests for production, requests for admission) are directed at the opposing party, subpoenas are the mechanism for compelling third parties to provide testimony and produce records. Common third-party witnesses in family law cases include:

• Employers (income verification, benefits information)
• Banks and financial institutions (account records, transaction history)
• Schools and daycare providers (attendance records, parent involvement records)
• Healthcare providers (medical records, mental health records)
• Insurance companies (policy details, claims history)
• Accountants and financial advisors (tax preparation records, financial planning documents)
• Real estate agents and appraisers (property valuations, transaction records)
• Law enforcement (police reports, incident records)
• Social services agencies (CPS reports, investigation files)

Subpoena Duces Tecum vs. Subpoena Ad Testificandum

• Subpoena Ad Testificandum: Commands the witness to appear and give testimony.
• Subpoena Duces Tecum: Commands the witness to produce documents and tangible things. May also command testimony.
• A single subpoena may combine both commands.

Key Procedural Considerations

1. Notice to Opposing Party. Under FRCP 45(a)(4), before issuing a subpoena commanding a non-party to produce documents, the issuing party must give prior notice to all other parties. Many state rules have similar requirements.

2. Compliance by Producing Documents. Under FRCP 45(d)(2)(A), a person commanded to produce documents need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

3. Consumer Notice Requirements. Some states require notice to the party whose records are being sought before serving a subpoena on a third party for that party's personal records (e.g., California CCP Section 1985.3 for consumer records; CCP Section 1985.6 for employment records).

4. HIPAA Compliance. When subpoenaing medical records, ensure compliance with HIPAA requirements, including providing the patient with notice and an opportunity to object, or obtaining a qualified protective order (45 C.F.R. Section 164.512(e)).

5. FERPA Compliance. When subpoenaing educational records, ensure compliance with FERPA requirements (20 U.S.C. Section 1232g). Schools may require a court order or parental consent before releasing records.

6. Financial Privacy. The Right to Financial Privacy Act (12 U.S.C. Section 3401 et seq.) may apply to subpoenas directed at financial institutions for individual records.

Motions to Quash

A witness or any party may move to quash or modify a subpoena on various grounds, including:
- The subpoena fails to allow a reasonable time to comply.
- The subpoena requires travel beyond the geographic limits.
- The subpoena requires disclosure of privileged or protected matter.
- The subpoena subjects the witness to undue burden.
- The subpoena does not comply with procedural requirements (e.g., witness fees not tendered).

The burden is generally on the party seeking to quash to demonstrate good cause for modification or quashing.

Tips for Effective Third-Party Subpoenas

1. Be Specific in Document Requests. Narrow your requests to the specific records needed. Overly broad requests are more likely to be challenged.
2. Allow Adequate Time. Provide sufficient lead time for the witness to gather and produce records. Institutional record keepers may need 2-4 weeks.
3. Coordinate with Opposing Counsel. Consider stipulating to a records-only subpoena to avoid the cost of a deposition.
4. Follow Up. If the witness does not produce records or appear, follow up promptly. If necessary, move the court for an order to compel compliance or to hold the witness in contempt.
5. Protective Orders. When seeking sensitive records (medical, financial, educational), consider proposing a protective order to address privacy concerns and facilitate production.

SOURCES AND REFERENCES

• Federal Rule of Civil Procedure 45: https://www.law.cornell.edu/rules/frcp/rule_45
• Federal Rule of Civil Procedure 30: https://www.law.cornell.edu/rules/frcp/rule_30
• 28 U.S.C. Section 1821 (Witness Fees): https://www.law.cornell.edu/uscode/text/28/1821
• California Code of Civil Procedure Sections 2020.010-2020.510: https://leginfo.legislature.ca.gov
• California Code of Civil Procedure Sections 1985-1985.8: https://leginfo.legislature.ca.gov
• New York CPLR Sections 2301-2310: https://www.nysenate.gov/legislation/laws/CVP
• Texas Rule of Civil Procedure 176: https://www.txcourts.gov/rules-forms/rules-standards
• Florida Rule of Civil Procedure 1.410: https://www.floridabar.org
• HIPAA Privacy Rule, 45 C.F.R. Section 164.512(e): https://www.law.cornell.edu/cfr/text/45/164.512
• FERPA, 20 U.S.C. Section 1232g: https://www.law.cornell.edu/uscode/text/20/1232g