What is a “subpoena duces tecum”?

A subpoena duces tecum is a court order requiring the person named in it to produce certain books, papers, or other tangible things for the court.  In some U.S. states, this type of subpoena is known as a “subpoena for the production of evidence.”

A subpoena duces tecum differs from a standard subpoena, also known as a “subpoena ad testificandum,” because the subpoena duces tecum does not require the person named in it to give oral testimony, either in a deposition or at trial. Instead, the subpoena duces tecum only orders the perrson to produce the items named in the document.

Usually, these items are documents, like books, medical records, deeds of ownership, or other papers or computer files containing information that applies to a particular court case.  However, a subpoena duces tecum can be used to order the production of any tangible object.  For instance, suppose that in a products liability case, the defective product that injured the plaintiff had been taken to a repair shop.  If the repair shop refuses to give up the item of its own free will when asked, a subpoena duces tecum can be sent ordering the repair shop to deliver the item within a particular period of time or face court penalties.

Traditionally, a subpoena duces tecum required a person to deliver the items listed in the subpoena to the court where the case was being heard.  Today, however, a subpoena duces tecum is more likely to require the items to be delivered to the offices of the attorney that drafted the subpoena.  Most U.S. states allow attorneys to draft subpoenas, for both items and testimony, in their capacity as officers of the court.

Whether the items are to be delivered to an attorney or to the court, however, the subpoena duces tecum will generally include a date, time, and place for delivery.  Some subpoenae duces tecum contain a deadline, and the person named in the subpoena is expected to deliver the items by that date or face penalties.  Others, however, contain a particular date, time, and place to which the person must show up with the documents.

These specifics are frequently used when the subpoena duces tecum is combined with a subpoena ad testificandum, or a subpoena for oral testimony.  For instance, if a subpoena is sent to a witness in a case, asking him to appear at a certain date, time, and place to give a deposition, the same subpoena may also ask him to bring certain documents or other items with him at that time.  Failing to show up, to bring the items, or both may leave that person open for penalties for contempt of court.

A subpoena duces tecum is typically used when the parties to a case or their attorneys need documents or other items from a third party who is not involved in the court case.  Parties who need documents or other items from one another typically get them through the process of discovery by sending a request for production of documents and other evidence or a similar discovery request.  Parties who refuse to provide access to the items listed in a request for production may find themselves on the receiving end of a motion to compel.

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