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.
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.
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.
While a subpoena duces tecum is a powerful tool, it’s not limitless:
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.
| Aspect | Subpoena Duces Tecum | Subpoena Ad Testificandum |
|---|---|---|
| Purpose | To request documents or records | To request personal testimony |
| Latin Meaning | “bring with you under penalty” | “bring with you to testify under penalty” |
| Type of Requested Items | Documents, records, tangible items | Testimony, oral statements |
| Focus | Material evidence | Witness’s personal knowledge, observations, and statements |
| Compliance Requirement | Produce and bring specified items | Attend the hearing and provide testimony |
| Involvement of Parties | Often targets third parties | Usually involves witnesses |
| Format of Appearance | Generally, there is no need to appear in person | The witness is required to appear in person |
| Penalty for Non-compliance | Legal consequences for failing to produce requested items | Legal consequences for failing to testify |
| Common Legal Proceedings | Civil litigation, administrative hearings | Court trials, depositions, hearings |
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.
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.
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.