Do you wonder what is a subpoena duces tecum?
You’ve received a subpoena duces tecum and you want to know all there is to know about it?
What is a subpoena duces tecum, how is served or how can it be challenged?
In this article, we will go over the concept of subpoena duces tecum in detail.
Let’s get started!
What is a subpoena
To answer the question what is a subpoena duces tecum, you must first understand what is a subpoena.
Subpoena in Latin means “under penalty”.
It is an order from the court for you to testify or produce documents.
A subpoena will typically have terms clearly ordering you to present yourself at a certain date, time and place to testify as to what you know about a case or deliver some documents or evidence in your possession.
In this article, we will go over a type of subpoena requiring you to produce documents
What does subpoena duces tecum mean
A subpoena duces tecum is a type of subpoena ordering a party to a legal case or a third-party to produce documents or evidence in the context of a lawsuit.
In Latin, “I” means “bring with you”.
This means that a subpoena duces tecum means literally means “bring with you under penalty”.
A subpoena duces tecum can also be referred to as a subpoena for production of evidence.
This is another way of referring to a subpoena duces tecum without using Latin terms.
Unlike a subpoena ad testificandum requiring you to testify, a subpoena duces tecum does not require someone to testify but rather deliver the documents requested.
You can be asked to produce documents for a deposition or you can be asked to produce documents before a judge.
In most cases, subpoena duces tecum is used to have someone produce documents and evidence when conducting a legal discovery.
The subpoena duces tecum cannot be used to have a witness produce an oral testimony related to the validity or truth of the documents produced.
You are ordered to “deliver” documents and evidence in your possession.
If a particular witness needs to be questioned on the documents delivered or testify as to the truth of the document, that must be handled via deposition or an oral hearing in front of a judge.
The person must also have some personal knowledge of facts to be able to comment on a document, this relates to the question of relevance.
What type of subpoena documents can be requested
A subpoena duces tecum is an order to produce any form of tangible evidence or material.
It can be anything really, so long as it’s relevant to the case.
A subpoena can order you to produce:
- Digital files
- Database records
- Text messages
- Social media chats
- Scanned documents
- Communication records
- A physical thing
- A tangible material or object
Under a subpoena duces tecum, you can be asked to produce any document or tangible thing that can be used as evidence in court to allow a judge to render justice.
If the parties cannot agree on the question of relevance, they may submit their differences to the court who will rule whether or not a document can be relevant.
Subpoena duces tecum for discovery
In most cases, a subpoena duces tecum is used to have someone produce documents when conducting discovery.
The subpoena will order a witness or a person to bring with them documents or evidence in their possession that can help the court render a fair judgment.
For example, if you are involved in a court case where a party had transferred money to someone else but you don’t know who, you may want to send a subpoena duces tecum to the bank or financial institution to try to find this information.
You are essentially ordering the bank to produce bank records showing the transfer of funds hoping to see who was the recipient.
This process is called discovery and it is an essential phase of a court proceeding.
How is a subpoena duces tecum served
Every jurisdiction defines the manner subpoenas must be served to the recipient.
Typically, the subpoena duces tecum must be served directly to the person ordered to comply and produce the needed documents.
The service will be handled by a process server, a professional in the business of serving legal documents.
When a process server serves the subpoena, he or she will confirm in writing that the in-person service was completed on what date, at what location and what time.
From the moment the subpoena duces tecum is served, the recipient is legally ordered to produce the needed documents.
Who can receive a subpoena duces tecum
A subpoena duces tecum can be served to a party involved in a legal case or parties outside of the court proceedings.
It is very common to see third-parties to a legal action served with a subpoena duces tecum to produce documents helping the parties do the necessary discovery to find all relevant evidence needed for their case.
This type of subpoena can also be served to a party to a legal action in the event they do not voluntarily produce documents required from them.
The decision to send a subpoena duces tecum must be carefully analyzed to ensure that the party receiving the subpoena may have documents relevant for the case and that you are not just fishing for information.
The party sending the subpoena must have justifiable reasons to believe that a third-party may be in possession of certain documents, files, objects or evidence that can be useful and relevant to its case.
Do I have to respond to a subpoena duces tecum
When you receive a subpoena duces tecum, you must deliver the documents in your possession and comply with the subpoena.
If you ignore the subpoena or fail to comply by providing the subpoena documents, you are exposing yourself to a condemnation for contempt to court, fines and potentially imprisonment.
The failure to respond to a subpoena is very serious.
One thing is for sure, you must respond to the subpoena.
Either you will need to comply with its terms or you need to legally contest it.
How to contest a subpoena duces tecum
You may not agree with what is being asked from you in the subpoena duces tecum for many reasons.
Perhaps a party is doing a “fishing expedition” and trying to put their hands on anything they can find.
In other cases, you are asked to deliver sensitive business documents such as your trade secrets and you surely do not want to disclose that.
It could even be that some subpoena documents asked are protected by your attorney-client privilege.
If you have a valid reason to challenge the subpoena, you must do so legally by filing a motion to quash a subpoena which is a motion to nullify the legal impact of the subpoena.
You can also file a motion to modify a subpoena, motion to vacate a subpoena or motion for a protective order as it can be relevant to you.
If you need to contest a subpoena, you’re advised to contact a civil lawyer who can assist you as you must file your motion within a certain timeline.
A subpoena duces tecum is an order from the court requiring a party to a lawsuit or a third-party produce documents, evidence or material relevant to the legal proceedings.
This type of subpoena is typically used in the context of legal discovery whereby parties to a lawsuit are gathering and collecting evidence to support their allegations or attack the claims made by the other party.
Subpoena duces tecum is Latin that literally means “bring with you under penalty”.
If you receive one, you must make sure you comply with its terms to avoid facing strict consequences.
If you feel that the subpoena is not reasonable or valid, you must take legal steps to contest the subpoena.
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