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Curious on a hypothetical case, if someone was subpoena'd to testify as a witness in a federal court case and they were served the subpoena on the Friday before the Tuesday of the case which leaves said witness only a day and a half of notice would the witness be able to request the court either quash or extend the time for them?

Would they also have to file a motion to quash the subpoena themselves?

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    Why is Friday to Tuesday only a day-and-half, not 4 days? In the previous question you wrote business days. What has business to do with it? Commented May 19 at 21:48
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    Weather Vane Because in terms of court and business's they usually only count week days and not weekends.
    – Will
    Commented May 19 at 21:57

2 Answers 2

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Subpoenas in federal court are governed by Federal Rule of Civil Procedure 45. The requirements to issue one are at Rule 45(a)-(c) and the means to resisting and enforcing them are at Rule 45(d)-(g). It bears noting that two days of advanced notice is not a hard and fast rule under FRCP 45. The local rules of the U.S. District Court for the District of Idaho might add this additional requirement, but they don't.

Different rules apply to criminal cases, and the question doesn't specify if it is a civil case or a criminal case. Subpoenas in federal criminal cases are governed by Federal Rule of Criminal Procedure 17 (which also doesn't have a hard and fast two days notice rule).

You could file a motion to quash the subpoena, or could defend yourself on the grounds of late notice in an action to enforce the subpoena.

Also, if you don't file a motion to quash, the court might erroneously issue a bench warrant for your arrest to enforce the subpoena, and you'd only be able to clear this up after you were arrested, which would be a great and non-compensable hassle. The court shouldn't do that, but without a motion clarifying the issue, it might overlook the late service of process of the subpoena in its file.

Another possibility would be for you to call the counsel that issued the subpoena and tell them that you won't be appearing due to the late service of process of the subpoena. If the counsel tried to have the court enforce your appearance in that context, and then you were arrested and forced to appear, the counsel who tried to enforce it without disclosing your communication with them, despite being alerted to the very late subpoena service and your intent not to appear as a result would probably face a serious sanction from the court for trying to do so.

But, if you appeared in court voluntarily without filing a motion to quash, your objection to the late service of the subpoena would probably be deemed to have been waived.

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    @Tak Cite some authority if you think you are right.
    – ohwilleke
    Commented May 20 at 18:35
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    @Tak Do you practice law in federal court? If not, how do you know?
    – ohwilleke
    Commented May 20 at 18:45
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    @Tak I have practiced law in the federal courts, not as my primary practice, but probably with one case every year or two, since 1995, in New York State and in Colorado.
    – ohwilleke
    Commented May 20 at 18:47
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    @Tak I have never seen a subpoena issued again in a case where a witness voluntarily appears in federal court for a hearing. I don't deny that it may have happened somewhere at sometime, but it isn't common practice.
    – ohwilleke
    Commented May 20 at 18:54
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    @Tak There are many continuances, but if a hearing is set and a witness is served very late with a subpoena but shows up anyway, that wouldn't be a common fact pattern for a continuance to be granted. If the witness doesn't show up, a continuance might indeed be granted although this would be in the discretion of the court. And, of course, continuances are granted sometimes for reasons unrelated to a particular witnesses' appearance or non-appearance (e.g. a lawyer or judge has COVID, one I've seen several times).
    – ohwilleke
    Commented May 20 at 18:58
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It’s not valid

You should give the person subpoenaed as much notice as possible of the hearing or trial date but the person must be served not less than 7 days before they are required to attend.

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