Subpoena: Legal Definition, Duces Tecum and Ad Testificandum

What is a Subpoena?

A subpoena is a legally binding command issued by a court or legal authority that requires an individual or entity to produce specified documents or testify in a legal proceeding under the threat of penalties for non-compliance.

The individual who receives a subpoena is legally obligated to comply, or they could face penalties, usually in fines or other court-sanctioned consequences.

If you have ever watched legal dramas on television, you have probably come across this term.

It is a fancy term that originates in Latin, meaning “under penalty”. But what does it signify in the realm of law?

Types of Subpoena

There are two primary types:

• Subpoena Duces Tecum: It commands an individual or entity to produce documents, records, or other tangible evidence. It’s essentially saying, “Bring with you under penalty.” For instance, a bank might be subpoenaed to produce account records in a fraud case.

• Subpoena Ad Testificandum: This type commands an individual to testify before a court or other legal authority. In other words, it’s saying, “Appear and give testimony under penalty.” Imagine a witness being called to testify about an accident they saw.

Who has the Authority to Issue a Subpoena?

It can be issued by courts or attorneys representing parties in a case, provided that the rules of the particular jurisdiction or court system authorise the attorney. The party or entity that issues it is often called the “moving party”.

What Should One Do Upon Receiving a Subpoena?

• Do Not Ignore It: Ignoring it can result in penalties or legal consequences. It’s not merely an invitation; it’s a mandate.

• Consult with an Attorney: If you receive one, especially one that requests sensitive information or may implicate you in a legal matter, it’s wise to consult with an attorney to understand your rights and responsibilities.

• Determine the Scope: They should be specific in what they request. If the request is overly broad or unclear, the recipient can challenge or seek to modify it.

• Comply or Object: If the recipient believes it is unfair, irrelevant, or burdensome, they can file an objection or motion to quash it. It can be modified or dismissed if the court agrees with the objections.

Examples

• Criminal Case: In a murder trial, the prosecution may subpoena surveillance footage from a nearby shop to place a suspect at the crime scene. This is a Subpoena Duces Tecum. They might also subpoena a bystander to testify about what they saw that night, a Subpoena Ad Testificandum.

• Civil Case: In a lawsuit alleging workplace discrimination, the plaintiff’s lawyer might subpoena email communications between company managers that might shed light on discriminatory attitudes or actions. This, too, is a Subpoena Duces Tecum.

To challenge it, one typically files a motion to quash or modify it in court. It is important to act promptly and consult with legal counsel to ensure that objections are raised correctly. If the court agrees with the challenge, it can be modified, limited, or dismissed.

Are There Legal Protections Or Exemptions From Complying With A Subpoena?

Certainly, some legal protections and exemptions can shield individuals or entities from complying fully or partially with a subpoena. Here’s a brief overview:

• Privileged Communications: Certain communications are deemed privileged and, thus, exempt from disclosure. Common examples include:

1. Attorney-Client Privilege: Communications between clients and their attorneys meant to seek or provide legal advice are protected.

2. Doctor-Patient Privilege: Confidential communications between a patient and their physician, made for diagnosis or treatment, may be protected

3. Spousal Privilege: In some jurisdictions, spouses cannot be compelled to testify against each other or reveal private marital communications

• Overbroad or Unduly Burdensome Requests: If it seeks extensive information or the production is overly taxing or costly for the recipient, it might be considered burdensome. In such cases, the recipient can seek to have the subpoena narrowed or quashed.

• Irrelevance: Information irrelevant to the ongoing legal proceedings may be exempt from production.

• Fifth Amendment Protections: In the U.S., individuals can refuse to produce evidence that might incriminate them, citing the Fifth Amendment‘s protection against self-incrimination.

• Procedural Grounds: If it hasn’t been issued or served correctly following the specific procedural rules of the jurisdiction, it may be challenged.

• Trade Secrets: Businesses may object to it if they seek disclosure of trade secrets or proprietary information that could harm their competitive stance.

Can A Subpoena Obtain Electronic Information, Such As Emails Or Digital Records?

It can be used to obtain electronic information, including emails and digital records. In today’s digital age, electronic data is often pivotal evidence in civil and criminal cases.

When a subpoena requests such information, entities or individuals are legally obligated to provide the specified electronic records unless protected by privilege or other legal exceptions.

However, the scope must be specific and relevant to the case. Recipients must handle electronic data carefully to avoid accidental deletions or alterations and consult legal counsel to ensure appropriate compliance or to challenge overreaching requests.

Conclusion

It is a powerful legal tool that compels individuals or entities to produce evidence or testify in a legal proceeding. It carries the weight of the law, ensuring that the legal process can proceed with all the necessary information at hand.

However, like all powers, it comes with checks and balances to prevent misuse. If you ever encounter one personally or professionally, understanding its significance and your rights is essential.