Failure to comply with a subpoena duces tecum can result in contempt of court, escalating daily fines, jail time of up to 18 months, a mandatory order to pay the other side’s attorney’s fees, an adverse inference against you at trial, and federal criminal charges carrying up to 20 years if you destroy the requested documents. A subpoena duces tecum is a court order requiring you to produce specific documents, records, or electronic files. The penalties apply whether you are a party to the lawsuit or a records custodian caught in the middle.
Contempt of Court
The core penalty for defying a subpoena is contempt. Federal law lets a court punish contempt “by fine or imprisonment, or both” when someone disobeys a lawful court order.1Office of the Law Revision Counsel. 18 USC 401 – Power of Court Rule 45(g) of the Federal Rules of Civil Procedure applies that authority to subpoenas: a court may hold in contempt any person who, after being properly served, “fails without adequate excuse to obey the subpoena or an order related to it.”2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 “Adequate excuse” means a recognized legal justification. Difficulty gathering the documents does not qualify.
Contempt comes in two forms, and the difference determines what happens to you.
Civil contempt is designed to force compliance. A judge can impose escalating daily fines or order you jailed until you produce the documents. You hold the keys to your own release: comply and the sanctions stop. Federal law caps this confinement at 18 months for a single proceeding.3Office of the Law Revision Counsel. 28 USC 1826 – Recalcitrant Witnesses
Criminal contempt is punishment for defying the court’s authority. It results in a fixed fine, a set jail sentence, or both, and producing the documents afterward does not undo the penalty.1Office of the Law Revision Counsel. 18 USC 401 – Power of Court
Judges usually try civil contempt first, because the point is to get the documents produced. Criminal contempt tends to follow deliberate, sustained refusal.
Mandatory Attorney’s Fees
Beyond contempt, the court can make you pay for the trouble your refusal caused. When a motion to compel production is granted, the federal rules require the court to order the non-compliant person to pay the other side’s “reasonable expenses incurred in making the motion, including attorney’s fees.” The rule says “must.” The court has to award those costs unless the moving party skipped a good-faith attempt to resolve the dispute informally, the noncompliance was substantially justified, or an award would be unjust.4Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Section: Payment of Expenses; Protective Orders
These fee awards add up fast. Motions to compel involve briefing, court appearances, and sometimes evidentiary hearings. The whole cost lands on the person who refused to comply.
An Adverse Inference at Trial
When documents go missing or a party refuses to produce them, a judge can tell the jury to presume the withheld records would have hurt the non-compliant party’s case. This is an adverse inference instruction, and it can quietly sink your position without any additional witness testimony.
For electronically stored information, the federal rules allow a court to “instruct the jury that it may or must presume the information was unfavorable to the party” that lost it, but only if the court finds that party “acted with the intent to deprive another party of the information’s use in the litigation.”5Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Section: Failure to Preserve Electronically Stored Information Carelessness is not enough for this particular remedy. Courts retain broad inherent authority to address other forms of noncompliance, and adverse inferences remain a common response when documents vanish under suspicious circumstances.
Destroying or Altering Subpoenaed Documents
Shredding, deleting, or hiding requested materials after a subpoena arrives crosses from civil noncompliance into federal criminal exposure. Two statutes matter most.
Under 18 U.S.C. § 1519, anyone who knowingly destroys, alters, or conceals a record “with the intent to impede, obstruct, or influence the investigation or proper administration of any matter” within federal jurisdiction faces up to 20 years in prison.6Office of the Law Revision Counsel. 18 USC 1519 – Destruction, Alteration, or Falsification of Records in Federal Investigations and Bankruptcy Under 18 U.S.C. § 1512(c), anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object” to impair its availability in an official proceeding also faces up to 20 years.7Office of the Law Revision Counsel. 18 USC 1512 – Tampering With a Witness, Victim, or an Informant
Even an unsuccessful destruction attempt can trigger sanctions when the court discovers it. Judges have imposed adverse inference instructions, case dismissals, and default judgments against parties caught trying to destroy evidence, including where the evidence was later recovered by other means.
The moment you receive a subpoena duces tecum, you have a duty to preserve everything within its scope. Ordinary retention policies, automatic email deletions, and routine cleanups must be suspended for the relevant materials. Letting those processes continue can itself constitute spoliation.
How the Court Actually Enforces a Subpoena
The party that issued a subpoena cannot enforce it on its own. Enforcement means going back to the judge, and it usually moves in stages. Each stage is a chance to comply before the penalties grow.
Meet and Confer
Before filing anything, the requesting party has to try to resolve the dispute informally. A motion to compel must include a certification that the party “has in good faith conferred or attempted to confer” with the non-compliant person.8Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Section: In General Many local rules require an actual conference rather than an exchange of letters. Judges will deny motions filed without a genuine attempt to work it out.
If you have legitimate concerns about scope or timing, this is the best window to negotiate.
Motion to Compel
When informal efforts fail, the requesting party asks the court to order production. Under Rule 45, the party can “move the court for the district where compliance is required for an order compelling production or inspection.”2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 If the motion is granted, you face a direct court order and the mandatory attorney’s fee award attaches.
Show Cause and Contempt
If a court order is also ignored, the requesting party will seek a show cause hearing. You appear before the judge and explain why you did not comply. Without a legally recognized reason, sanctions follow, ranging from fines and fees to a contempt finding with potential jail time.
Non-Parties Face the Same Penalties
Banks, employers, medical providers, and other records custodians often receive subpoenas even though they have no stake in the underlying case. The same contempt penalties apply. A non-party who ignores a properly served subpoena can be held in contempt just like a party.2Legal Information Institute. Federal Rules of Civil Procedure Rule 45
Non-parties do get one financial protection that parties do not. Any court order compelling a non-party to produce documents “must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.”9Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Section: Protecting a Person Subject to a Subpoena; Enforcement The court can require the requesting party to reimburse you for attorney review time, staff hours spent searching, and copying costs. You do not need to show “undue burden” to qualify.
How to Push Back Without Getting Sanctioned
Ignoring a subpoena is never the right response, even if it looks unreasonable. The rules give you formal ways to object without risking contempt.
Serve a Written Objection
The simplest first step is a written objection served on the party that issued the subpoena. Under Rule 45, a person commanded to produce documents may serve a written objection “before the earlier of the time specified for compliance or 14 days after the subpoena is served.”9Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Section: Protecting a Person Subject to a Subpoena; Enforcement Once you serve that objection, production can only be compelled by a court order. The burden shifts to the requesting party. This buys time and protects you from contempt while the dispute is worked out.
File a Motion to Quash
For a substantive challenge, you can ask the court to throw out or narrow the subpoena. The federal rules require a court to quash or modify a subpoena that:
- Fails to allow a reasonable time to comply
- Requires compliance beyond the geographic limits set by Rule 45
- Demands disclosure of privileged or protected information, such as attorney-client communications or medical records, when no exception or waiver applies
- Subjects the recipient to undue burden10Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Section: Quashing or Modifying a Subpoena
The rule uses “must.” If any of these conditions is met, the court has no discretion to leave the subpoena in place as written. Most successful challenges land on privilege or undue burden. A demand for “any and all documents” with a one-week deadline is exactly the kind of request courts routinely narrow.
Producing Some, Withholding Others
If some documents are privileged and others are not, you generally must produce the non-privileged items and provide a privilege log for what you are withholding. A privilege log identifies each withheld document, describes its contents in general terms, and states the legal basis for the claim. Refusing to produce anything because a few documents might be privileged is treated as noncompliance, not a valid objection.
The Fifth Amendment and Document Subpoenas
The contents of existing documents are almost never protected by the Fifth Amendment, but the act of producing them sometimes is. The Supreme Court drew this distinction in Fisher v. United States (1976). Because tax records, business files, and financial statements were created voluntarily before the subpoena was issued, their contents are not “compelled” testimony. You cannot refuse to hand them over just because the contents are incriminating.
Physically handing over documents, though, communicates something on its own: that the records exist, that you possess them, and that they are authentic. When those implicit admissions are themselves incriminating, the “act of production” can qualify as protected testimony. This matters most when the government does not already know what documents you have. If existence and location are a “foregone conclusion” the government can establish independently, the privilege does not apply.
Two limits worth knowing. The protection applies only to individuals, not to corporations or other organizations. And it does not allow you to destroy documents. You may be able to resist producing them through a proper legal challenge, but destruction after a subpoena arrives exposes you to the obstruction charges described above.
Deadlines and Extensions
A subpoena that does not give you enough time to comply is defective. Courts must quash any subpoena that “fails to allow a reasonable time to comply.”10Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Section: Quashing or Modifying a Subpoena What counts as reasonable depends on the volume and complexity of the demand. Courts have found notice of less than 24 hours unreasonable, and many local rules require at least 14 days.
If the timeline is tight but you intend to cooperate, contact the issuing attorney and negotiate an extension. These agreements happen constantly and do not require court involvement. Get the agreement in writing, even by email. If the issuing party will not agree, file a written objection or a motion to quash before the original deadline. Letting the deadline pass in silence is what turns a timing problem into a contempt risk.