Connecticut subpoenas: a self-represented litigant has to summarize the testimony first

Connecticut treats the subpoena as something a judge should sometimes see before it issues. For self-represented litigants that is a standing requirement, and the application has to contain more than a name.

The application, and what it must say

Practice Book § 7-19(a):

Self-represented litigants seeking to compel the attendance of necessary witnesses in connection with the hearing of any matter shall file an application to have the clerk of the court issue subpoenas for that purpose. The application shall include a summary of the expected testimony of each proposed witness so that the court may determine the relevance of the testimony. The clerk, after verifying the scheduling of the matter, shall present the application to the judge before whom the matter is scheduled for hearing, or the administrative judge or any judge designated by the administrative judge if the matter has not been scheduled before a specific judge, which judge shall review the application.

Two things are being asked for: an application, and a summary of what each witness is expected to say — expressly "so that the court may determine the relevance of the testimony."

A list of names will not do. The application has to give the judge enough to assess relevance witness by witness, which means thinking about what each person actually adds before filing.

What the judge does next

Section 7-19(b) allows the judge to decide without a hearing:

The reviewing judge may act on the application ex parte and may direct or deny the issuance of subpoenas as such judge deems warranted under the circumstances, keeping in mind the nature of the scheduled hearing and future opportunities for examination of witnesses, as may be appropriate.

Note the criterion at the end — the judge weighs "future opportunities for examination of witnesses." An application for a subpoena to an early hearing may be refused on the basis that the witness can be examined later, so it is worth saying in the application why this hearing is the moment.

If the application is granted ex parte, "any party may file a motion for protective order or motion to quash." If it is denied ex parte, "the applicant may request a hearing which shall be scheduled by the court." And the judge may order the application placed in the official court file either way.

Where the judge does not act ex parte, § 7-19(c) requires the application to go in the file "to allow any party to file an objection, which objection will be filed by a date to be set by the reviewing judge."

Small claims are exempt. Section 24-22 provides that subpoenas "shall be issued by the clerk without fee, and may be issued upon the clerk's own motion or by order of the judicial authority," and that "An application for issuance of subpoena shall not be required in small claims matters." The requesting party still pays "the fees for service and witness fees."

Fifteen days, both ways

For deposition subpoenas, § 13-28A(c) sets a floor on compliance time:

Unless otherwise ordered by a judge of the Superior Court or agreed upon in writing by the parties, any subpoena issued to a person commanding the production of documents or other tangible thing at a deposition shall not direct compliance within less than fifteen days from the date of service thereof.

Fifteen days minimum, displaced only by a court order or a written agreement of the parties.

The recipient's objection window matches it. Under § 13-28A(d)(1), a person commanded to appear at a deposition or to produce documents may object "within fifteen days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than fifteen days after service."

How that objection is served is prescribed, and the prescription is unusual:

Service of the objection shall be made by United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or other officer.

Certified or registered mail, and expressly without a marshal. An objection hand-delivered by a process server is not served in the manner the rule specifies.

An expense objection must come with a costs affidavit

The same subsection adds a requirement that changes how burden arguments are made in Connecticut:

If the objection is based upon the subpoenaed person incurring unreasonable expense, such written objection shall be accompanied by an affidavit of costs setting forth the estimated or actual costs of compliance with such subpoena, including, but not limited to, the person's attorney's fees or the costs to such person of electronic discovery.

Estimated or actual costs, sworn, with attorney's fees and e-discovery costs expressly within scope.

That affidavit is not merely supporting material. It becomes the measure of what the court can order later — see the finding requirement below — so a non-party objecting on expense grounds should prepare it carefully rather than asserting burden in general terms.

Once an objection is served, the effect is immediate. Under § 13-28A(d)(2) the requesting party "shall not be entitled to compel such person's appearance or receive, copy or inspect the books, papers, documents or tangible things, except pursuant to an order of the Superior Court."

Medical malpractice cases are carved out

Section 13-28A(d)(3):

The provisions of subdivisions (1) and (2) of this subsection shall not be applicable to a civil action filed to recover damages resulting from personal injury or wrongful death in which it is alleged that such injury or death resulted from professional malpractice of a health care provider or health care institution.

So in a malpractice case the written objection route — and the automatic bar on production that goes with it — is unavailable. A recipient there is left to the motion to quash and the protective order.

The court must make a burden finding before compelling

Section 13-28A(h) tells the court what to do on a motion to compel where a non-party has objected on burden grounds:

If the nonparty to whom the subpoena was directed served an objection asserting that the subpoena subjected that nonparty to unreasonable burden or expense, when ruling on a motion to compel directed to such person, the court shall make a finding as to whether the subpoena subjects the person to undue or unreasonable burden or expense prior to entering any order to compel such person's appearance or the production, copying or inspection of such materials.

A finding, made before any order to compel — not a discretion to be exercised silently.

And where the finding goes against the subpoena, the remedy is specified:

any order to compel such person's appearance or production, copying or inspection of such materials shall protect the person from undue or unreasonable burden or expense resulting from compliance with such subpoena and, except in the case of a subpoena commanding the production, copying or inspection of medical records, may include, but not be limited to, the reimbursement of such person's reasonable costs of compliance, as set forth in the affidavit of costs.

Two points. Reimbursement is measured by the affidavit of costs, which is why that document matters. And medical records are excluded from the reimbursement remedy, so a records department producing medical files does not recover its costs by this route.

Where to file the motion

Section 13-28A(e) answers a question that catches out-of-state practitioners, and it has three answers:

(1) for an action pending in this state, the judicial district where the action is pending, (2) for an action pending in another state that has adopted the Interstate Depositions and Discovery Act, the judicial district in this state that issued the subpoena, and (3) for an action pending in a state that has not adopted that Act, the judicial district where the person to whom the subpoena is directed resides.

The third is the one to note: where the originating state has not adopted the uniform act, the forum follows the witness's residence.

Motions to quash or modify are available to "A party or the person to whom the subpoena is directed," and the standard in § 13-28A(f) is conjunctive — the court may quash or modify "if it is unreasonable and oppressive or if it seeks the production of materials not subject to production" — or may "condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials."

A capias, and jail

Section 13-28A(i) is blunt about what follows a refusal:

If any person to whom a lawful subpoena is issued under any provision of this section fails without just excuse to comply with any of its terms, the court may issue a capias and cause the person to be brought before that court, and, if the person subpoenaed refuses to comply with the subpoena, the court may commit the person to jail until such person signifies a willingness to comply with it.

A capias to bring the person in, and — on continued refusal — commitment "until such person signifies a willingness to comply." The alternative is the ordinary discovery-noncompliance orders under § 13-14.

Who may issue one

Section 13-28A(a) lists the issuers for a deposition subpoena in a Connecticut action: "any judge or clerk of any court in this state or Commissioner of the Superior Court," on request, provided the party has complied with the deposition notice provisions.

Every Connecticut attorney is a Commissioner of the Superior Court, so counsel issue their own deposition subpoenas; self-represented parties go through § 7-19.

For an out-of-state action under the Interstate Depositions and Discovery Act, § 13-28A(b) allows "any judge or clerk of the Connecticut Superior Court, upon receipt of the documents required by General Statutes § 52-657," to issue a subpoena in accordance with that statute.

A short checklist

If you are issuing one:

1. If you are self-represented, apply — and summarize each witness's expected testimony.
2. Explain why this hearing is the moment; the judge weighs future opportunities to examine.
3. Give at least fifteen days for production at a deposition.
4. Expect a costs affidavit if the recipient objects on expense grounds, and address it.
5. In small claims, no application is needed and the clerk issues without fee.
6. File any motion in the right judicial district — three different answers depending on where the case is.

If you have been served:

1. Object within fifteen days, or by the compliance date if that is sooner.
2. Serve the objection by certified or registered mail, without a marshal.
3. Attach an affidavit of costs if expense is your ground — it sets the ceiling on any reimbursement.
4. Note the malpractice carve-out. In those cases the written objection route is not available.

Where these rules live

• Conn. Practice Book § 7-19 — Issuing subpoenas for self-represented parties
• Conn. Practice Book § 13-28A — Deposition subpoenas
• Conn. Practice Book § 24-22 — Subpoenas in small claims actions
• Connecticut motion to compel discovery
• Connecticut requests for admission
• Responding to a Connecticut complaint

This page explains what the rules say. It isn't legal advice, and the Interstate Depositions and Discovery Act statutes referred to in § 13-28A are not carried on this site.