A subpoena basically requires non-parties to cooperate in litigation by supplying documents or testimony. It is one of the most powerful tools an attorney or litigant has to develop and present relevant information to the court.
A subpoena serves two distinct purposes. First, it can be used to compel a witness to come to a testimonial court proceeding. These are commonly referred to as “trial subpoenas.” Second, it can be used to obtain information from persons, corporations or partnerships who are not actually parties to the litigation at issue. These are commonly referred to as “discovery subpoenas.” The form for subpoenas is available here at the South Carolina Judicial Department website. South Carolina Rule of Civil Procedure 45 sets forth the procedural rules governing subpoenas.
Subpoenas can be used to compel a witness to come to court for a testimonial hearing. Even for favorable witnesses it can be useful to issue trial subpoenas. If that witness becomes unavailable (due to illness or serious injury), and that witness’ testimony is relevant and not cumulative, the court can allow that witness’ prior deposition testimony to come into evidence, continue the trial, or hold the trial open until that witness becomes available. If that witness is not under subpoena, the court is less likely to continue the trial or hold the trial open. If a subpoenaed witness refuses or fails to show for trial, the court can ask the sheriff’s office to locate that witness and bring him or her to court (often in handcuffs).
Discovery subpoenas can be used to obtain information from non-parties that the discovery rules authorize from parties. There are direct parallels between discovery subpoena options and the rules of civil procedure regarding discovery. A subpoena can be used to compel a non-party to be deposed, just as Rule 30, SCRCP can be used to depose a litigant. A subpoena can be used to compel a non-party to produce documents for inspection and copying or permit the inspection of a premises, just as Rule 34, SCRCP can be used to require a litigant to produce documents for inspection and copying or permit the inspection of a premises.
There are different procedural requirements regarding trial subpoenas and discovery subpoenas. Discovery subpoenas must be served on all parties of record. Rule 45(b)(1). This is not required of trial subpoenas. Trial subpoenas issue from the county where the trial will take place. Rule 45(a)(2). Discovery subpoenas issue from the county where the witness lives or conducts business, or the county where the deposition will take place. Rule 45(a)(2). So long as the witness lives within South Carolina there is no geographic restriction on trial subpoenas. Rule 45(c)(3)(A)(ii). A witness cannot be compelled to travel more than 50 miles from the county where that person resides, is employed or regularly transacts business in person for a discovery subpoena. Rule 45(c)(3)(A)(ii).
Attorneys wishing to issue subpoenas can sign and serve them. A pro se litigant can ask the clerk of court to sign and issue blank subpoenas which that litigant can then fill out and serve. Rule 45(a)(3). A subpoena actually has the authority of a court order and persons violating subpoenas can be subject to the court’s contempt powers. Rule 45(e).
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