Requesting a Subpoena
Notice of Important Update
This page was updated on October 7, 2021. In addition to some technical revisions, the update provides information about the requirement that the requester establish the necessity of a subpoena where the longshore or longshore extension claim is still pending before OWCP, see Section IV. and about the limitations on service of subpoenas outside the territorial jurisdiction of the United States, see Section V.
- Read and Understand the Rules
- E-mail Processing
- Regular or Express Mail Processing
- Subpoenas in Claims Pending before OWCP under the LHWCA or Its Extensions
- International Subpoenas
- Do Not Put SSNs on Subpoenas
- Rule - 29 C.F.R. § 18.56
Section 556(c)(2) of the Administrative Procedure Act provides that an administrative law judge (ALJ) may issue subpoenas authorized by law. 5 U.S.C. § 556(c)(2). See also 5 U.S.C. § 555(d).
The U.S. Department of Labor, Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges (OALJ) are found at 29 C.F.R. Part 18. Section 18.56, which is quoted below, states the procedures governing issuance of subpoenas relating to matters pending before OALJ. It is essential that you read and understand Section 18.56 before requesting and serving subpoenas.
Follow the procedure below for requesting subpoenas by e-mail.
1. Download. Download and fill in the applicable information on the subpoena form:
- Forms for E-mail Processing:
- Subpoena to Appear and Testify at a Hearing (04/2020) (for e-mail processing only)
- Subpoena to Appear and Testify at a Deposition (04/2020) (for e-mail processing only)
- Subpoena to Produce Documents, Information or Objects, or to Permit Inspection of Premises (04/2020) (for e-mail processing only)
Incomplete or illegible subpoenas will be rejected. Unless ordered otherwise by the presiding judge, however, you may leave the date/time/place fields blank if that information is not yet determined. Do not fill in the “Signature of U.S. Administrative Law Judge” portion of the form. This section will be digitally signed and dated once the ALJ approves the subpoena. When completing the subpoena, the case number listed must be a valid agency (e.g., OWCP) or OALJ case number and not an insurance claim number or internal case file number.
2. Submit for approval by e-mail. E-mail the subpoena issuance request, with the subpoena form(s) as attachments, to the e-mail box for the District Office in which the presiding judge is located. If the case is not yet assigned to a judge, send the subpoena request to the District Chief Judge at the office to which the case is assigned. If you cannot identify which judge or office the case is assigned to, you may mail the request to the National Office at OALJ-Filings@dol.gov.
See Section IV. below for important information about requesting a subpoena where the claim is pending before OWCP.
Washington, DC National and District Offices:
- OALJ-Filings@dol.gov (for National Office Docket; unassigned or new cases)
- OALJ-Headquarters-DC@dol.gov (for cases assigned to Judges Henley, Almanza or Bland)
- OALJ-DC-District@dol.gov (for cases assigned to Judges Annos, Applewhite, Farley, Hobbs or Leslie)
District Offices outside Washington, DC:
Subject line. The e-mail Subject line must contain, in the following order:
- (a) The name of the presiding judge (use UNK if the case is not assigned or you do not know who the presiding judge is)
(b) The name of the parties (e.g., Jones v. Big Co.)
(c) The OALJ case number
(d) If the OALJ case number is unknown or has not been assigned yet, please include the case number from the agency below (e.g., OWCP, OSHA, Wage and Hour)
(e) A notation that this is a Subpoena Request
This is an example of what the Subject line should look like:
- Subject: Judge Jane Doe; Jones v. Big Co.; OALJ No. 2020-BLA-05555; Subpoena Request
3. Native format. Keep the subpoena form in its native format. These forms have a digital signature field embedded so that, when received, the presiding judge may sign the subpoenas remotely. Scanned versions of these forms cannot be processed electronically.
4. As an alternative, you may submit your subpoenas for approval through EFS. For cases currently pending before OALJ, you may submit your subpoena request using the Department of Labor's eFile/eServe System for Adjudications ("EFS") at efile.dol.gov instead of by e-mail. EFS cannot be used for subpoena requests, however, if the claim is still at the OWCP level because EFS can only receive filings on cases currently docketed before OALJ. See Section IV. below for important information about requesting a subpoena where the claim is pending before OWCP.
5. ALJ approval and service. If the ALJ approves the subpoena, it will be digitally signed and e-mailed back to the requester. When serving the subpoenas, you must comply with the requirements of 29 C.F.R. § 18.56(b). Note that the Department of Veterans Affairs requires a VA Form 10-5345 “Request for and Authorization to Release Medical Records or Health Information” to accompany all subpoenas for VA records.
If you are unable to submit your subpoena requests by e-mail or through EFS, you may mail them. In view of the COVID-19 pandemic, however, parties should anticipate that mail processing of subpoena requests may be slower than e-mail or EFS processing.
1. Download and complete. Download the applicable subpoena form; complete the applicable information; print the subpoena, and send it to the appropriate judge with a request for issuance of the subpoena.
- Forms for Regular Mail Processing:
- Subpoena to Appear and Testify at a Hearing (08/2020) (hard copy requests only)
- Subpoena to Appear and Testify at a Deposition (08/2020) (hard copy requests only)
- Subpoena to Produce Documents, Information or Objects, or to Permit Inspection of Premises (08/2020) (hard copy requests only)
Incomplete or illegible subpoenas will be rejected. Unless ordered otherwise by the presiding judge, however, you may leave the date/time/place fields blank if that information is not yet determined. Do not fill in the “Signature of U.S. Administrative Law Judge” portion of the form. This section will signed by the judge and dated once the ALJ approves the subpoena.
When completing the subpoena, the case number listed must be a valid agency (e.g., OWCP) or OALJ case number and not an insurance claim number or internal case file number.
If you are unable to download subpoenas forms, you may write to the presiding ALJ to request that blank subpoenas be mailed to you.
2. Submit for approval. Mail the request to the applicable OALJ office.
Send the subpoena issuance request to the presiding judge. If the case is not yet assigned to a judge, send the subpoena request to the District Chief Judge at the office the case is assigned. If you cannot identify which judge or office the case is assigned to, send the request to the OALJ National Office.
See Section IV. below for important information about requesting a subpoena where the claim is pending before OWCP.
3. ALJ approval and service. If the ALJ approves the subpoena, it will be printed and mailed to the requester. When serving the subpoenas, you must comply with the requirements of 29 C.F.R. § 18.56(b). Note that the Department of Veterans Affairs requires a VA Form 10-5345 “Request for and Authorization to Release Medical Records or Health Information” to accompany all subpoenas for VA records.
4. Express mail. If the requester wants the completed subpoena returned via express mail service, the requester should include a prepaid label. If such a prepaid label is not provided, the completed subpoena will be returned via standard U.S. Post Office mailing.
1. Requests Can Be Made Through E-mail or Hard Copy, But Not Through EFS
Provided that it can be shown to be necessary, subpoenas may be issued by OALJ in claims pending before OWCP under the Longshore and Harbor Workers' Compensation Act (LHWCA), or one of its extensions, such as the Defense Base Act. Such requests may be filed with OALJ using the e-mail system described above in Section II, or by regular or express mail as described above in Section III. You cannot use EFS (efile.dol.gov) to file such a request because EFS can only receive filings on cases currently docketed before OALJ.
Where the need for a such a subpoena arises:
- if the claim was filed by a U.S. claimant, direct the request to the OALJ District Office that services the compensation district suboffice in which the claim is pending,
- if the claim was filed by a non-U.S. claimant, direct the subpoena request to OALJ’s National Office.
In addition to the subpoena form, such a request must include documentation establishing the necessity as described in the next section.
2. Requests Must Include a Showing of Necessity Within the Meaning of Armani
Where a claim under the LHWCA or one of its extensions is pending at the OWCP level, and a subpoena becomes necessary, the parties may apply to the OALJ for the issuance of a subpoena. Maine v. Brady-Hamilton Stevedore Co., 18 BRBS 129 (1986) (en banc); see also Armani v. Global Linguist Solutions, 46 BRBS 63 (2012), recon. en banc denied, BRB No. 12-0196 (May 14, 2013).
In Armani, the Board instructed that:
- It is clear from Maine that an administrative law judge may issue a subpoena upon application from a party, whose case is still at the informal level before the OWCP and has not been referred to the OALJ, only when it is “necessary” to do so. In order to be “necessary,” there must be a refusal to produce the evidence requested by the opposing party. . . . As claimant has offered to provide the requested information without resorting to a formal deposition, she has not made “the issuance of a subpoena . . . necessary.” Maine, 18 BRBS at 133 (emphasis added). This case is not one of “the few cases where the informal nature of the pre-hearing investigatory process [has broken] down,” id., as contemplated by Maine.
Armani, 46 BRBS at 65. The burden is on the party seeking the subpoena to show that it has been unable to obtain relevant information by informal means. Consistent with the requirements of Armani and Maine, requests for subpoenas in matters pending before the District Director/OWCP must include a showing that the subpoenas are “necessary” within the meaning of Armani. Generally, such a showing may be made by averment in a cover letter seeking issuance of the subpoenas, or by an attached declaration or affidavit, reciting the need for the subpoena and the attempts made to obtain the information by informal means. The issuing ALJ, however, may require different or additional means of documenting necessity.
As a general rule, where an employer/carrier requests a subpoena to obtain documents in the possession of a third party, such as a doctor, “necessity” cannot be established if claimant is willing to provide the requested information to the employer/carrier, e.g., by executing a release of medical information. Accordingly, in such cases, an employer/carrier’s subpoena request must address whether claimant has refused to do so. A request that fails to show that a subpoena is necessary under Armani and Maine may be returned unsigned.
Pursuant to 29 C.F.R. §18.56(b)(2) and (3), the ALJ's subpoena power is limited to service in the United States or to a United States national or resident who is in a foreign country. See Mugerwa v. Aegis Defense Services, 52 BRBS 11 at 3 and n.3 (2018), recon. denied, BRB No. 17-0407 (Oct. 19, 2018) (citing Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 305 (S.D.N.Y. 2009) (subpoena rules, Fed. R. Civ. P. 45 and 28 U.S.C. §1783, are not applicable to foreign nationals)).
When a party intends to serve a subpoena on a U.S. national or resident who is in a location outside the territorial jurisdiction of the United States, that party shall certify to the ALJ to whom the request is filed that all applicable legal requirements have been satisfied, and will be satisfied before attempting to serve such a subpoena.
See also Administrative Notice, In Re Cases Involving Parties, Witnesses, and/or Evidence, 2021-MIS-00006 (Chief ALJ Oct. 5, 2021).
Parties must not put a Social Security number on the subpoena. See Notice (Chief ALJ Aug. 26, 2005) (OALJ will reject or redact subpoenas bearing a SSN); Administrative Notice (Chief ALJ Dec. 17, 2007) (Partial SSN; or attachment or appendix containing a SSN, are not acceptable alternatives). Although § 18.56(a)(2)(i)(A) states that “[i]n the event that the case number is an individual's Social Security number only the last four numbers may be used,” no DOL agency uses Social Security numbers as a case number.
§ 18.56 Subpoena.
(a) In general.
(1) Upon written application of a party the judge may issue a subpoena authorized by statute or law that requires a witness to attend and to produce relevant papers, books, documents, or tangible things in the witness’ possession or under the witness’ control.
(2) Form and contents—
(i) Requirements—in general. Every subpoena must:
(A) State the title of the matter and show the case number assigned by the Office of Administrative Law Judges or the Office of Worker’s Compensation Programs. In the event that the case number is an individual’s Social Security number only the last four numbers may be used. See § 18.31(a)(1);
(B) Bear the signature of the issuing judge;
(C) Command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and
(D) Set out the text of paragraphs (c) and (d) of this section.
(ii) Command to attend a deposition—notice of the recording method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.
(iii) Combining or separating a command to produce or to permit inspection; specifying the form for electronically stored information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition or hearing, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(iv) Command to produce; included obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
(1) By whom; tendering fees; serving a copy of certain subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering with it the fees for 1 day’s attendance and the mileage allowed by law. Service may also be made by certified mail with return receipt. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served on the person to whom it is directed, a notice and copy of the subpoena must be served on each party.
(2) Service in the United States. Subject to paragraph (c)(3)(i)(B) of this section, a subpoena may be served at any place within a State, Commonwealth, or Territory of the United States, or the District of Columbia.
(3) Service in a foreign country. 28 U.S.C. 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.
(4) Proof of service. Proving service, when necessary, requires filing with the judge a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.
(c) Protecting a person subject to a subpoena—
(1) Avoiding undue burden; sanctions. A party or representative responsible for requesting, issuing, or serving a subpoena must take reasonable steps to avoid imposing undue burden on a person subject to the subpoena. The judge must enforce this duty and impose an appropriate sanction.
(2) Command to produce materials or permit inspection—
(i) Appearance not required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition or hearing.
(ii) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or representative designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(A) At any time, on notice to the commanded person, the serving party may move the judge for an order compelling production or inspection.
(B) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.
(3) Quashing or modifying a subpoena—
(i) When required. On timely motion, the judge must quash or modify a subpoena that:
(A) Fails to allow a reasonable time to comply;
(B) Requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to paragraph (c)(3)(ii)(C) of this section, the person may be commanded to attend the formal hearing;
(C) Requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(D) Subjects a person to undue burden.
(ii) When permitted. To protect a person subject to or otherwise affected by a subpoena, the judge may, on motion, quash or modify the subpoena if it requires:
(A) Disclosing a trade secret or other confidential research, development, or commercial information;
(B) 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; or (C) A person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend the formal hearing.
(iii) Specifying conditions as an alternative. In the circumstances described in paragraph (c)(3)(ii) of this section, the judge may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(A) Shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(B) Ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in responding to a subpoena—
(1) Producing documents or electronically stored information. These procedures apply to producing documents or electronically stored information:
(i) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(ii) Form for producing electronically stored information not specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
(iii) Electronically stored information produced in only one form. The person responding need not produce the same electronically stored information in more than one form.
(iv) Inaccessible electronically stored information The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the judge may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of § 18.51(b)(4)(iii). The judge may specify conditions for the discovery.
(2) Claiming privilege or protection—
(i) Information withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as hearing-preparation material must:
(A) Expressly make the claim; and
(B) Describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(ii) Information produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as hearing-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the judge in camera for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
(e) Failure to obey. When a person fails to obey a subpoena, the party adversely affected by the failure may, when authorized by statute or by law, apply to the appropriate district court to enforce the subpoena.