Subpoena for Deposition - Personal Injury

SUBPOENA FOR DEPOSITION — PERSONAL INJURY

IMPORTANT: Most courts require subpoenas to be issued on the official court form. In federal court, use AO Form 88A (Subpoena to Testify at a Deposition in a Civil Action). This template serves as a comprehensive worksheet and supplement to the official court form, providing the substantive content needed to complete the official subpoena and its attachments.

IN THE [________________________________] COURT
[____] JUDICIAL DISTRICT / CIRCUIT / DIVISION
COUNTY OF [________________________________], STATE OF [____]

[________________________________], )
Plaintiff, ) Case No.: [________________________________]
) Judge: [________________________________]
v. )
) Dept./Division: [____]
[________________________________], )
Defendant. )

SECTION 1: SUBPOENA INFORMATION

Issuing Party

Type of Subpoena

☐ Subpoena to Testify at a Deposition (testimony only)
☐ Subpoena Duces Tecum (testimony and production of documents/things)
☐ Subpoena for Production of Documents Only (no testimony — records deposition / business records subpoena)

SECTION 2: WITNESS / RECIPIENT INFORMATION

SECTION 3: COMMAND TO APPEAR AND/OR PRODUCE

YOU ARE HEREBY COMMANDED:

☐ To appear at the time, date, and place set forth below to testify at a deposition in the above-captioned civil action.

☐ To produce at the time, date, and place set forth below the documents, electronically stored information, or objects described in the attached Schedule of Documents (Attachment A) for inspection and copying.

☐ To permit inspection of the following premises: [________________________________]

Deposition Details

Recording Method

☐ Stenographic transcription by a certified court reporter
☐ Video recording
☐ Audio recording
☐ Stenographic transcription and simultaneous video recording

Court Reporter Information

SECTION 4: JURISDICTIONAL REQUIREMENTS AND COMPLIANCE

Geographic Limitations

Critical: A subpoena may only command attendance at a deposition within the geographic limits prescribed by the applicable rules. Serving a subpoena that exceeds these limits may render it unenforceable.

Witness Fee and Mileage Requirements

Critical: Under FRCP Rule 45(b)(1) and most state rules, witness fees and mileage must be tendered at the time of service. A subpoena served without proper tender of fees may be unenforceable.

Note: Witness fee and mileage rates are subject to periodic change. Always verify current amounts before service. Expert and treating physician deposition fees are typically higher and are negotiated separately.

Witness Fee Calculation:

SECTION 5: SERVICE REQUIREMENTS

Method of Service

Service Information

SECTION 6: NOTICE TO OTHER PARTIES

Required: Under FRCP Rule 45(a)(4), if the subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, notice and a copy of the subpoena must be served on each party before it is served on the person to whom it is directed.

SECTION 7: ATTACHMENT A — SCHEDULE OF DOCUMENTS TO PRODUCE (DUCES TECUM)

Instructions: Select or customize the applicable categories below based on the type of witness/custodian being subpoenaed.

A. MEDICAL PROVIDER / RECORDS CUSTODIAN

The following documents are requested from: [________________________________] (name of provider/facility)
For patient: [________________________________] (name of patient/party)
For the period: [__/__/____] to [__/__/____]

1. All medical records, including but not limited to: physician notes, progress notes, history and physical examination reports, nursing notes, intake forms, patient questionnaires, and all other clinical documentation.

2. All operative reports, anesthesia records, pathology reports, and procedure notes.

3. All diagnostic imaging studies and reports, including X-ray, MRI, CT scan, ultrasound, and bone scan images and interpretive reports.

4. All laboratory test results and reports.

5. All physical therapy, occupational therapy, chiropractic, and rehabilitation records, including initial evaluations, treatment notes, progress reports, and discharge summaries.

6. All psychological and psychiatric records, including evaluation reports, therapy notes, and treatment plans (subject to applicable state mental health confidentiality laws and 42 C.F.R. Part 2 for substance abuse records).

7. All emergency department records, triage notes, and EMS/ambulance records.

8. All admission and discharge summaries, including discharge instructions and follow-up recommendations.

9. All prescription records, medication lists, and pharmacy records.

10. All referral letters, consultation reports, and correspondence with other Medical Providers regarding the patient.

11. All billing records, itemized statements, charges, and fee schedules for services rendered.

12. All explanation of benefits (EOBs), insurance payment records, and collection records relating to the patient's account.

13. All correspondence, letters, and communications between the Medical Provider and the patient, the patient's attorneys, insurance companies, or any third party regarding the patient's treatment or claims.

14. All records of appointments, cancellations, no-shows, and missed appointments.

15. The complete patient file, including any documents not specifically described above.

B. EMPLOYER / HUMAN RESOURCES RECORDS CUSTODIAN

The following documents are requested from: [________________________________] (name of employer)
For employee: [________________________________] (name of employee/party)
For the period: [__/__/____] to [__/__/____]

1. All employment records, including application, resume, offer letter, employment contract, and personnel file.

2. All payroll records, including pay stubs, wage statements, W-2 forms, 1099 forms, and year-to-date earnings records.

3. All attendance records, time sheets, time clock records, and PTO/leave records.

4. All records of absences related to the Incident, including FMLA documentation, leave of absence requests, and disability accommodation requests.

5. All records reflecting any work restrictions, light duty assignments, or modified duty arrangements related to the Incident.

6. All correspondence between the employer and the employee regarding the Incident, injuries, or return to work.

7. All workers' compensation records, reports, and claim files (if applicable).

8. All performance evaluations, disciplinary records, and termination documents (if applicable).

9. All benefit plan documents, including health insurance enrollment records, disability insurance documentation, and benefit statements.

10. All corporate policies and procedures applicable to the employee, including any employee handbook in effect at the relevant time.

C. INSURANCE COMPANY / CLAIMS REPRESENTATIVE

The following documents are requested from: [________________________________] (name of insurer/administrator)
For claim number: [________________________________]
For insured/claimant: [________________________________]
For the period: [__/__/____] to [__/__/____]

1. The complete insurance policy (including all declarations pages, endorsements, riders, and amendments) in effect at the time of the Incident.

2. All claim files, including adjuster notes, activity logs, investigation reports, and internal memoranda relating to the claim (to the extent not privileged; provide a privilege log for any withheld documents).

3. All correspondence between the insurer and the insured, the claimant, or any third party regarding the claim.

4. All photographs, videos, recordings, or surveillance materials obtained or generated by the insurer or its agents in connection with the claim.

5. All medical records reviews, independent medical examination (IME) reports, and peer reviews obtained by the insurer.

6. All reserve information, settlement evaluations, and payment records relating to the claim.

7. All recorded statements obtained from any Person in connection with the claim.

8. All subrogation files, lien documentation, and reimbursement records.

D. LAW ENFORCEMENT / GOVERNMENT AGENCY

The following documents are requested from: [________________________________] (name of agency)
For incident/report number: [________________________________]
For the period: [__/__/____] to [__/__/____]

1. The complete police report, traffic crash report, or incident report, including all supplements and amendments.

2. All witness statements collected during the investigation.

3. All photographs, videos, diagrams, and measurements taken at the scene.

4. All 911 call recordings and dispatch logs related to the Incident.

5. All body camera and dashcam footage from responding officers.

6. All citations, charges, or notices of violation issued in connection with the Incident.

7. All toxicology or drug/alcohol test results obtained in connection with the Incident.

8. All records reflecting the disposition of any citations or charges.

E. GENERAL BUSINESS RECORDS CUSTODIAN

The following documents are requested from: [________________________________] (name of entity)
For the period: [__/__/____] to [__/__/____]

1. All business records relating to [________________________________] (describe subject matter with reasonable particularity).

2. All surveillance or security camera footage from [________________________________] (location) for the period of [__/__/____] through [__/__/____].

3. All maintenance, inspection, and repair records for [________________________________] (describe property, equipment, vehicle, etc.) for the period of [__/__/____] through [__/__/____].

4. All incident reports, complaint records, and safety reports relating to [________________________________] for the period of [__/__/____] through [__/__/____].

5. All contracts, agreements, and correspondence between the entity and [________________________________] relating to [________________________________].

SECTION 8: HIPAA AND PRIVACY COMPLIANCE

IMPORTANT: When subpoenaing medical records or other protected health information (PHI), compliance with the Health Insurance Portability and Accountability Act (HIPAA) and applicable state privacy laws is mandatory.

HIPAA Compliance Requirements (45 C.F.R. § 164.512(e))

Under the HIPAA Privacy Rule, a covered entity (medical provider, health plan, etc.) may disclose protected health information in response to a subpoena that is not accompanied by a court order if one of the following conditions is met:

Option 1: Written Authorization from the Patient
☐ A valid HIPAA-compliant authorization signed by the patient is attached to this subpoena.

Option 2: Satisfactory Assurances — Notice to Patient
☐ The party issuing the subpoena has made reasonable efforts to ensure that the individual whose PHI is being requested has been given notice of the request. Satisfactory assurances include:
- Written notice to the individual's last known address, including a copy of the subpoena and sufficient information to permit the individual to raise objections with the court; AND
- The time for the individual to raise objections has elapsed and no objections were filed, or any objections have been resolved by the court.

Option 3: Satisfactory Assurances — Qualified Protective Order
☐ The party issuing the subpoena has obtained or has made reasonable efforts to secure a qualified protective order that: (a) prohibits the parties from using or disclosing the PHI for any purpose other than the litigation; and (b) requires the return or destruction of the PHI (including all copies) at the end of the litigation.

State Privacy Law Compliance

In addition to HIPAA, the following state-specific privacy requirements may apply:

Special Privacy Protections

☐ Psychotherapy Notes: Protected under HIPAA and generally require specific patient authorization for disclosure, even with a subpoena. 45 C.F.R. § 164.508(a)(2).

☐ Substance Abuse Treatment Records: Protected under 42 C.F.R. Part 2 and generally require either patient consent or a court order specifically authorizing disclosure. A standard subpoena alone is insufficient.

☐ HIV/AIDS Records: Many states require a specific court order for disclosure of HIV test results and related information.

☐ Reproductive Health Records: Some states provide enhanced privacy protections for reproductive health information.

SECTION 9: MOTION TO QUASH OR MODIFY SUBPOENA

Grounds for Motion to Quash

Under FRCP Rule 45(d)(3) (or applicable state rule), the court must quash or modify a subpoena that:

1. Fails to allow a reasonable time to comply;
2. Requires a person to comply beyond the geographical limits specified in Rule 45(c);
3. Requires disclosure of privileged or other protected matter, if no exception or waiver applies;
4. Subjects a person to undue burden.

The court may also quash or modify a subpoena that requires:

5. Disclosing a trade secret or other confidential research, development, or commercial information;
6. Disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party;
7. A person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles.

Objection Procedures

SECTION 10: PROOF OF SERVICE / RETURN OF SERVICE

Proof of Service (to be completed by the person who served the subpoena)

I, [________________________________], being at least 18 years of age and not a party to this action, declare under penalty of perjury that I served the within Subpoena for Deposition on [________________________________] (name of witness/custodian) as follows:

Method of Service: ☐ Personal delivery (in-hand service to the witness)
☐ Substituted service (describe): [________________________________]
☐ Other (describe): [________________________________]

Date of Service: [__/__/____]

Time of Service: [____] ☐ a.m. ☐ p.m.

Location of Service: [________________________________]

Description of Person Served: ☐ The witness personally ☐ Person of suitable age and discretion at the witness's: ☐ residence ☐ place of business

Witness Fees Tendered:
☐ Yes — Attendance fee: $[____] — Mileage: $[____] — Total: $[____]
☐ No — Reason: [________________________________]

Server's Signature: ______________________________

Server's Printed Name: [________________________________]

Server's Address: [________________________________]

Date Signed: [__/__/____]

SUBSCRIBED AND SWORN to before me this [____] day of [________________], 20[____].

Notary Public: ______________________________

My Commission Expires: [__/__/____]

[SEAL]

SECTION 11: CERTIFICATE OF SERVICE (to all parties)

I hereby certify that on [__/__/____], I served a copy of the foregoing Subpoena for Deposition — Personal Injury (including all attachments) and the Notice of Taking Deposition upon all counsel of record and/or unrepresented parties by the following method:

☐ Electronic filing (e-filing) through the Court's electronic filing system
☐ Email to: [________________________________]
☐ U.S. Mail, postage prepaid, to the address(es) on file
☐ Personal delivery / Hand delivery
☐ Certified mail, return receipt requested
☐ Facsimile to: [________________________________]
☐ Other: [________________________________]

Signature: ______________________________

Printed Name: [________________________________]

Bar Number: [________________________________]

Firm: [________________________________]

Address: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

PRACTICE TIPS FOR SUBPOENA PRACTICE IN PERSONAL INJURY CASES

Pre-Service Checklist

☐ Verify the official subpoena form required by the court (e.g., AO 88A in federal court)
☐ Confirm geographic limitations — is the witness within the permissible range?
☐ Calculate and prepare witness fees and mileage for tender at service
☐ Prepare the document schedule/attachment with reasonable particularity
☐ Serve notice and copy of the subpoena on all parties before serving on the witness (FRCP Rule 45(a)(4))
☐ Arrange for personal service by a qualified process server (not a party to the action)
☐ Prepare HIPAA compliance documentation if seeking medical records
☐ Provide consumer/patient notice if required by state law (e.g., California CCP § 1985.3)
☐ Calendar the deposition date and any motion-to-quash deadline

Medical Provider Subpoenas — Special Considerations

1. Treat the Provider's Time with Respect. When subpoenaing a treating physician for deposition, coordinate scheduling through the provider's office. Offer a reasonable fee for the physician's deposition time (typically $500-$2,000+ per hour for medical experts). A provider who feels fairly compensated is more likely to provide helpful testimony.

2. Records Deposition vs. Live Testimony. In many cases, medical records alone are sufficient and a records deposition subpoena (documents only) is more cost-effective than requiring the provider to appear. Consider whether live testimony is necessary.

3. HIPAA Authorization. The most efficient approach is to obtain a signed HIPAA authorization from the patient (your client) and attach it to the subpoena. This eliminates the need for the provider to independently verify compliance with HIPAA's notice or protective order requirements.

4. Minimum Necessary Standard. HIPAA requires that disclosures be limited to the minimum necessary to accomplish the purpose. Draft document requests with appropriate specificity and time parameters.

5. Psychotherapy Notes and Substance Abuse Records. These records have enhanced privacy protections and typically cannot be obtained by subpoena alone. A specific court order is usually required for substance abuse records under 42 C.F.R. Part 2, and patient authorization is typically required for psychotherapy notes under 45 C.F.R. § 164.508(a)(2).

Employer Subpoenas — Special Considerations

1. Personnel File Protections. Some states restrict access to personnel files. Tailor requests to job-relevant records (pay, attendance, leave, restrictions).

2. Workers' Compensation Files. If the employee filed a workers' compensation claim related to the incident, these records may be discoverable but may require specific authorization or subpoena provisions.

3. ERISA Plans. Benefits information related to ERISA-governed plans may involve additional procedural requirements.

Enforcement and Contempt

A witness who fails to comply with a properly served subpoena without adequate excuse may be held in contempt of court. Before seeking contempt, most jurisdictions require:

1. Proof that the subpoena was properly served with tender of witness fees;
2. A showing that the witness was within the geographic reach of the subpoena;
3. Proof that compliance was not unreasonably burdensome; and
4. In many jurisdictions, a motion to compel compliance before seeking contempt sanctions.

SOURCES AND REFERENCES

• Federal Rules of Civil Procedure, Rules 30, 45 — https://www.law.cornell.edu/rules/frcp
• 28 U.S.C. § 1821 (Witness Fees) — https://www.law.cornell.edu/uscode/text/28/1821
• AO Form 88A (Subpoena to Testify at Deposition) — https://www.uscourts.gov/forms/subpoena
• California Code of Civil Procedure §§ 1985-1987, 2020.010-2020.510 — https://leginfo.legislature.ca.gov
• Texas Rules of Civil Procedure, Rules 176, 205 — https://www.txcourts.gov/rules-forms
• Florida Rules of Civil Procedure, Rule 1.310; Florida Statutes §§ 48.031, 92.142 — https://www.floridabar.org/rules
• New York Civil Practice Law and Rules, CPLR §§ 2301-2308 — https://www.nysenate.gov/legislation/laws/CVP
• HIPAA Privacy Rule, 45 C.F.R. § 164.512(e) — https://www.hhs.gov/hipaa
• 42 C.F.R. Part 2 (Substance Abuse Records) — https://www.ecfr.gov/current/title-42/chapter-I/subchapter-A/part-2