A subpoena … is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. … party being subpoenaed has the right to object to the issuance of the subpoena, if it is for an improper purpose, such as subpoenaing records that have no relevance to the proceedings, or subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged. (
Okay, I added that quote at the start. But in practice witnesses are required to testify at the times and locations convenient to the court, not them, and are not compensated. So "undue burden" must be quite high to veto testimony. That is, courts think they are very important.
One thing I think you might be missing is that, at least in federal court, the information discoverable via subpoena is more limited than "all relevant information." Rule 26(b)(1) incorporates an important "proportionality" test that narrows the universe of discoverable information:
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."
In addition, under Rule 45(d)(1), the party issuing a subpoena is subject to sanctions for "imposing undue burden or expense on a person subject to the subpoena." (https://www.law.cornell.edu...
Subpoena futures solve one problem -- encouraging collecting of information -- but create another: We have imposed significant ex ante costs on each person to collect/maintain information. Probably, then, such a proposal needs to be coupled with curtailment of the court's arbitrary powers or at least some other form of compensation.
Even if we overlook fairness/political feasibility, efficiency demands at least some consideration of the cost of collecting various pieces of information while the subpoena future only reveals its value. As described, the subpoena option looks like a military draft when a better policy would be higher pay to attract volunteers.
Okay, I added that quote at the start. But in practice witnesses are required to testify at the times and locations convenient to the court, not them, and are not compensated. So "undue burden" must be quite high to veto testimony. That is, courts think they are very important.
One thing I think you might be missing is that, at least in federal court, the information discoverable via subpoena is more limited than "all relevant information." Rule 26(b)(1) incorporates an important "proportionality" test that narrows the universe of discoverable information:
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."
(https://www.law.cornell.edu...
In addition, under Rule 45(d)(1), the party issuing a subpoena is subject to sanctions for "imposing undue burden or expense on a person subject to the subpoena." (https://www.law.cornell.edu...
You could see my proposal as a great expansion of that concept, which today requires much higher 'foreseeability' than I'm proposing. See my added.
It would make sense to weigh the cost against the benefit when deciding if to require info to be collected and saved.
Subpoena futures solve one problem -- encouraging collecting of information -- but create another: We have imposed significant ex ante costs on each person to collect/maintain information. Probably, then, such a proposal needs to be coupled with curtailment of the court's arbitrary powers or at least some other form of compensation.
Even if we overlook fairness/political feasibility, efficiency demands at least some consideration of the cost of collecting various pieces of information while the subpoena future only reveals its value. As described, the subpoena option looks like a military draft when a better policy would be higher pay to attract volunteers.