A subpoena duces tecum, or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.
The summons is known by various names in different jurisdictions. The term subpoena duces tecum is used in the United States, as well as some other common law jurisdictions such as South Africa and Canada. The summons is called a “subpoena for production of evidence” in some U.S. states that have sought to reduce the use of non-English words and phrases in court terminology.
The subpoena duces tecum is similar to the subpoena ad testificandum, which is a writ summoning a witness to testify orally.
However, unlike the latter summons, the subpoena duces tecum instructs the witness to bring in hand books, papers, or evidence for the court. In most jurisdictions, a subpoena usually has to be served personally.
The phrase “subpoena duces tecum” is a Latin expression meaning literally “under [threat of] penalty [or punishment], you will bring [it] with you.” The word sub means “under” and poena “penalty”; duces “you will bring”; te “you” and cum “with”.
Order pursuant to a deposition
In the United States, a notice to a party deponent (a person called to testify in a deposition) may be accompanied by a request for production of documents and other tangible things during the taking of a deposition. The notice to produce (literally: “bring these documents with you to the deposition”) is served prior to the deposition. This follows the Federal Rules of Civil Procedure. The method of using a subpoena duces tecum is generally valid only to compel a witness to produce documents and other things at the time of the deposition. If a deponent is a non-party to the action (not involved directly in the litigation, but wanted for testimony), production of documents can be compelled only through a proper subpoena duces tecum. Depending on the nature of the documents, and their volume, some may be obtained directly, and before deposition under FRCP 34. In cases where a large number of documents are potentially relevant to the hearing, the court may order them to be produced prior to the deposition. This forms a part of legal discovery and allows parties involved time to review them prior to the deposition or other hearing.
Federal cases and some states follow Rule 27(a)(3) of the Federal Rules of Civil Procedure concerning the production of documents in pretrial discovery, including those pertaining to depositions. These can include the subpoena duces tecum to produce documents, or in some cases to undergo a physical or mental examination. In the Ninth Circuit, interpreting Rule 27 literally, it has been held that a party can simply produce the documents only, and in certain cases, avoid an oral deposition when presented with a subpoena duces tecum.
A continuance (a rescheduling of a court hearing at a later date) of a civil action may be granted due to the absence of documents or papers. The party failing to produce the documents requested by a subpoena duces tecum must show good reason why there was a failure to do so. Acceptable explanations have included loss or destruction of papers, or an agreement to use copies. The party seeking the continuance must show that the absence of the documents is not because of the negligence of their own, or of the attorney of record.
Similarly, a continuance may be granted in a criminal case if there is good reason documents pertinent to the case could not be produced at the time of trial. For example, a continuance should be granted for failure to produce a transcript of testimony given at a previous trial. In general, it is reversible error to proceed with a criminal trial in the absence of a previous trial transcript, when such contains pertinent information that should have been considered in the new trial. In these cases, a continuance is the usual remedy.
A party’s failure to produce subpoenaed evidence, where the evidence is under their control, may support a request to a finder of fact for an inference that the evidence would have been unfavorable to them.
In the 1957 case Jencks v. United States the United States Supreme Court ruled that a defendant must have access to government witnesses who will testify against him in a criminal trial, and must also have access to any documents pertaining to that testimony. This includes papers, documents, written statements and the like. This led to passage of the Jencks Act, 18 USC, Part II, Chapter 223, § 3500, which allows for subpoena duces tecum of relevant government documents, but only after a government agent or employee has testified at trial. There can be no pre-trial discovery. The subpoena is allowed by the trial judge. The government has the right to deny access to the documents. This may be due to the sensitive nature of the documents, or because they are classified.
In such an instance, the accused is permitted to ask the court for a remedy or sanction against his accuser or plaintiff for their inability to be able to confront the papers and/or effects (i.e., material items, physical exhibits, technical analyses, lab reports, etc.) that assert or support the accusation(s) against him. A court, in law and equity, is required to answer such a request. If the accused’s request is not answered in a manner that favorably restores the balance between the accused and the Government in criminal cases, or between the defendant and the plaintiff in civil cases, it is grounds for an appeal if a mistrial is not granted. The United States Supreme Court dealt with this issue in federal civil cases in United States v. Reynolds.
If a remedy is granted, there is a mistrial and dismissal of criminal charges. An accused criminal has no right to subpoena the work product of the prosecution in a criminal case.
Writ of mandamus
A writ of mandamus is appropriate to compel surrender of documents in the possession of attorneys or other persons that have been illegally obtained under the abuse of a writ of attachment. Mandamus can vacate an order to produce books and papers.
In an 1893 case, the United States Attorney for Alabama refused to vacate his office, refusing to surrender books, papers and other materials to the newly appointed US Attorney. The federal court in Alabama issued a writ directing the previous attorney to relinquish the documents. He, in turn, sought relief from the Supreme Court, which denied his application, saying it would not interfere with the properly conducted internal matters of a court. In the case In re: Parsons, the US Supreme Court wrote: “If the orders be regarded merely as directions in the administration of judicial affairs in respect of the immediate possession of property or custody of prisoners, we cannot be properly called to, by reason of anything appearing on these records, in the exercise of appellate jurisdiction in this manner, to direct them to be set aside. And if the proceedings should be treated as involving a final determination as on issues joined to the right to such possession and custody, there was no complaint of want of notice or of hearing, and the summary made adopted did not in itself affect the jurisdiction of the Circuit Court upon the ground that it had exceeded its powers.”
Mandamus is the remedy where a lower court has clearly failed to issue compulsion to produce documents, or to allow the petitioner access to such documents as may be in the possession of the court or the parties to the action. Mandamus can be used to compel a court to enforce an order to answer interrogatories (questions submitted by the court or one of the parties to be answered under oath and pain of perjury).
Mandamus is the proper remedy to compel the quashing of a subpoena duces tecum for the production before a grand jury of documents protected by attorney–client privilege. Presumably, this would apply to attorney work product, although there is no case law on the matter.
Commitment of witness; contempt of court
A witness who has refused to obey a lawful order to produce books, documents and papers may be incarcerated for contempt of court. A writ of habeas corpus will not apply unless it can be shown the witness could not have legally had possession of such documents. In such a situation the writ of habeas corpus will properly apply, and is the remedy for such improper action.
At common law, and under various statutes pertaining to a given jurisdiction, a right to action for damages, or for a statutory penalty or forfeiture, exists against a witness who, without sufficient excuse, fails or refuses to give oral testimony or to produce documents or other specified items in obedience to the command of a properly issued and served subpoena.
There are certain conditions precedent, or defenses, to a recovery of damages for a person’s failure to testify, or to provide documents pertinent to a hearing or trial. There must be a breach of testimonial duty, after having been properly served with a legitimately executed subpoena. There must be a demonstration of actual damages incurred from the absence of testimony. Most courts have rejected the arguments for seeking damages in this kind of case. Giving false testimony in a judicial proceeding even though the allegation is made that the person giving the testimony knew it to be false, does not give rise, either at common law or by statute, to a civil action for damages resulting from such testimony. The situation is probably different if intentionally false documents are submitted under a subpoena duces tecum.
Attorney–client privilege is generally recognized by the courts. Communications between lawyer and client are generally immune from subpoena. In other words, a lawyer cannot be compelled to testify in a trial unless the lawyer becomes, or appears to become, a party to the litigation. A similar situation exists with “work product”, meaning written documents or computer records generated in preparation for a trial or hearing. This includes information such as potential questions that may be asked of witnesses, lists of possible witnesses, memoranda, notes, trial strategies, written briefs, or documents that may, or may not end up being used in the course of litigation. Usually, none of this can be the subject of a subpoena duces tecum. If a communication between lawyer and client is made in the presence of the third party, the privilege is not recognized to exist.
The federal courts will apply the common law rule of attorney–client privilege unless there is an intervening state law applying to the central issues of the matter. In those cases, the federal court uses the effective state law.
Physician–patient privilege is usually statutorily defined, and can vary from state to state. The usual rule is that medical records are immune from subpoena if the plaintiff has not alleged physical or mental injuries or damages. Once the plaintiff alleges physical or mental injuries proximately flowing from a potentially tortious act by the defendant, or in some other disability hearing, medical records can be subject to subpoena duces tecum. While witnesses may try to resist legal discovery by asking the judge to protect them from questioning or inspection of documents, the policy of the courts is in favor of full disclosure. It is the intent of the rules of procedure that pre-trial discovery take place without any intervention of a judge. So-called “fishing expeditions” (massive and aimless calls for all documents related to the litigation) are permissible under Federal Rule of Civil Procedure 26 (b) (1). This rule is repeated in many states’ rules of procedure: “Parties may obtain discovery regarding any matter, not privileged, which is relevant … if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The looseness of the definition of relevant evidence is generally construed to mean “liberal” production. The physician who is the party to an action does not own the records of patients he has treated. They are not privileged if the patient has waived confidentiality. Physicians must produce medical records under subpoena duces tecum.
Peer review records, and other hospital documents of quality control committee meetings are generally not subject to subpoena duces tecum, since these have statutory immunity. The theory is that the frankness of peer review would be chilled if these records could be routinely compelled.
Several United States Federal Circuit Courts have recognized a limited reporter’s privilege. The United States Justice Department has a self-imposed limitation upon subpoena of reporters and their notes. This privilege is not universal, and is incomplete.
Internal memos from scientific and medical journals generated in peer reviewing articles for publication are generally immune from subpoena.
In some states (such as California), rape crisis counselors and domestic violence advocates hold a statutory privilege analogous to therapist–client privilege. (See, for example, 1035 Cal. Evidence Code for rape crisis advocates, and 1037.6 Cal. Evidence Code for domestic violence advocates). However, these privileges are not absolute, and may be overruled by a judge upon a showing that “the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services”, or under a number of other limited circumstances. To respect and preserve the privacy of sensitive material contained in such reports, the judge may require the disclosure of confidential information to take place in camera.
So called “priest–penitent” privilege, which precludes forced testimony of confessions made to a priest, minister, or religious adviser are statutorily defined in the United States. They vary between states. In some cases, the privilege is confusing and ill-defined. In others, there is recognized stare decisis. (See: priest–penitent privilege, confessional privilege (United States), spousal privilege, executive privilege, reporter’s privilege.)
Pre- and post-judgment execution proceedings
Discovery can be authorized for the production of documents for both pre-trial and post-trial actions. Most states either follow, or have modeled their procedures after, the Federal Rules of Civil Procedure Rule 69(a).
Judgment creditors (those who have received a favorable court ruling for monetary damages) are permitted to ask questions about a debtor’s residence; recent employment history; business relationships, including partners, co-shareholders, co-officers, co-directors; the contents of a will; transfers of property; and the identity of persons who either owed a debt to the judgment debtor, or received things of value from the debtor. Information in bank accounts can also be the subject of a subpoena duces tecum.
In federal court proceedings concerning judgment debtors, the inquiry is usually limited to the discovery of assets. In international cases, being tried in United States Federal Courts, the application of the Hague Service Convention is utilized where appropriate.
Public access to documents filed with the court
The right of the public to access judicial records is fundamental to a democratic state and is analogous to the United States’ First Amendment right of freedom of speech and of the press and the Sixth Amendment right to public trials. While the right to access trial records is not absolute, it is framed in presumption of public access to the proceedings and records. United States Code 11, Section 107 (a), of the federal bankruptcy law, is a codification of the common-law general right to inspect judicial records and documents. However, the right is not absolute and may be denied when the entity seeking to view the records has an improper purpose. The general intent of the statute is to favor public access to court documents.
Production of Documents in Bankruptcy
An entity (person or a corporation) may be compelled to produce documentary evidence in accordance with the subpoena powers of Federal Rule of Civil Procedure 45 as applied by Bankruptcy Rule 9016. The United States Bankruptcy Court has powers to compel production of documents from a non-debtor corporation or person concerning transactions involving the debtor corporation or person. Production of documents can be challenged as being burdensome. Assets diverted to outside corporations or bank accounts/stock portfolios and such other assets as land holdings lie within the power to compel production under subpoena duces tecum. Federal law recognizes no accountant-client privilege. A subpoena duce tecum served pursuant to Bankruptcy Rule 2004 is not a violation of accountant-client privilege. 11 United States Code section 107 (a) provides that papers filed in cases under the Bankruptcy Code and dockets of the Bankruptcy Courts are public records and are to be open to examination at reasonable times without charge.
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