Subpoena Duces Tecum: Legal Meaning, Purpose, Types and Format

What is Subpoena Duces Tecum?

A subpoena duces tecum is a legal order compelling an individual or entity to produce specific documents, records, or tangible items as evidence in a court proceeding under penalty of sanctions or contempt for non-compliance.

Subpoena Duces Tecum Legal Definition

Legal Definition of Subpoena Duces Tecum

“Subpoena duces tecum” is a Latin term, where “subpoena” translates to “under penalty,” and “duces tecum” means “bring with you.”

When combined, it can be understood as a command to a person to produce specific documents, records, or items under penalty if they fail to do so.

To understand its significance, one must delve deep into its roots, what it stands for, and how it’s employed in the court of law.

Distinguishing Subpoena Duces Tecum from Other Subpoenas

While many are familiar with the term “subpoena” as a general order to appear before the court, a subpoena duces tecum is distinct as it requires the person to bring certain documents, records, or tangible items to the court or deposition.

In contrast, a regular subpoena, often called “subpoena ad testificandum,” merely requires an individual to testify.

Purpose of Subpoena Duces Tecum

The primary goal of a subpoena duces tecum is to obtain evidence. The evidence could be vital in proving a fact in a legal case.

Subpoena Duces Tecum - subpoena law - civil procedure

For instance, in a business dispute over a breached contract, a subpoena duces tecum might compel one of the parties to produce the said contract or any other relevant communications.

Who can Issue a Subpoena Duces Tecum?

The authority to issue a subpoena duces tecum usually lies with the court where the case is filed. However, attorneys representing parties in litigation can also issue them in most jurisdictions.

The key is that the issuance should be within the boundaries of relevance, meaning the requested documents or items must be pertinent to the case in question.

Scope and Limitations of Subpoena Duces Tecum

While a subpoena duces tecum is a powerful tool, it’s not limitless:

  • Relevance: The requested documents or items must be relevant to the case. An opposing party can challenge a subpoena if they believe the request is a “fishing expedition” without a specific aim.
  • Privileged Material: Certain documents, such as those covered by attorney-client privilege, cannot be obtained through this subpoena.
  • Undue Burden: If complying with the subpoena causes an undue burden on the person or entity, they may request the court to quash or modify the subpoena.

Compliance and Consequences of Non-compliance

When served with a subpoena duces tecum, the recipient must produce the requested documents, records, or items by the specified date. If they fail to comply, they might face penalties, including fines or jail time for contempt of court.

However, if a person believes the subpoena is unreasonable or irrelevant or asks for privileged information, they can challenge it before the court.

If successful, the court may modify or quash the subpoena.

Difference between Subpoena Duces Tecum and Subpoena Ad Testificandum

AspectSubpoena Duces TecumSubpoena Ad Testificandum
PurposeTo request documents or recordsTo request personal testimony
Latin Meaning“bring with you under penalty”“bring with you to testify under penalty”
Type of Requested ItemsDocuments, records, tangible itemsTestimony, oral statements
FocusMaterial evidenceWitness’s personal knowledge, observations, and statements
Compliance RequirementProduce and bring specified itemsAttend the hearing and provide testimony
Involvement of PartiesOften targets third partiesUsually involves witnesses
Format of AppearanceGenerally, there is no need to appear in personThe witness is required to appear in person
Penalty for Non-complianceLegal consequences for failing to produce requested itemsLegal consequences for failing to testify
Common Legal ProceedingsCivil litigation, administrative hearingsCourt trials, depositions, hearings
Subpoena Duces Tecum vs Subpoena Ad Testificandum

If I Am Not A Party In The Lawsuit, Can I Still Be Served With A Subpoena Duces Tecum?

Legal systems recognise that relevant evidence crucial to the outcome of a case might be in the possession of third parties not directly involved in the litigation. A subpoena duces tecum is a tool that allows attorneys and the court to request specific documents or tangible items from these third parties.

If you receive such a subpoena, you are believed to hold evidence pertinent to the case. It is crucial to respond appropriately and in a timely manner. Ignoring or failing to comply can result in penalties.

However, if you believe the request is unreasonable or burdensome, you have the right to challenge or seek modification of the subpoena. In such situations, consulting with a legal expert is highly advisable to understand your rights and obligations.

What Should I Do If I Can’t Find Or No Longer Have The Documents Requested In The Subpoena?

Acting promptly is essential if you cannot locate or find the documents specified in the subpoena duces tecum. First, conduct a thorough search to ensure the documents are genuinely unattainable. Document your efforts as proof of your due diligence.

Once certain, inform the requesting party in writing about the unavailability, detailing the reasons. Avoid ignoring the subpoena or remaining silent, as this could lead to penalties or contempt of court. Transparency and proactive communication are crucial in such situations.

Are There Any Instances Where Multiple Parties Can Be Collectively Served With A Subpoena Duces Tecum Regarding The Same Documents?

Particularly in complex litigations involving multiple defendants or stakeholders, it’s not uncommon for several parties to have access to the same pertinent records. Multiple subpoenas might be issued to ensure the documents’ procurement from all relevant sources.

For instance, a parent company and its subsidiary might have copies of a crucial contract in a corporate lawsuit. Both entities could be served with subpoenas even if they hold duplicate records to ensure a comprehensive evidence collection.

However, each served party retains individual rights and can independently object, comply, or seek modification of the subpoena.

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