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Subpoena Duces Tecum

A subpoena duces tecum is a writ that orders a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.  The court has the inherent power to issue a subpoena duces tecum in a proper case[i].

In other words, a subpoena duces tecum is the process by which a court requires the production at the trial of documents, papers, or chattels material to the issue.  A court in which an action is pending has the inherent power to issue a subpoena duces tecum to any person who can be a witness[ii].  Therefore, subpoena duces tecum can be termed as a process designed to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding[iii].

A subpoena duces tecum must describe the document or other items which the witness is commanded to bring with him/her to the trial with such definiteness that the witness can identify them without prolonged or extensive search.  However, a party is not entitled to bring by a subpoena duces tecum a mass of books and papers in order that s/he may search them through to gather evidence[iv].

Similarly, a witness subpoenaed duces tecum can refuse to produce documents which are not material to the issue or which are of a privileged character.  If a witness has a reasonable excuse for failing to respond to a subpoena duces tecum, it is to be judged by the court and not by the witness.

It is to be noted that the decision to quash a subpoena duces tecum rests within the discretion of the court[v].  In order to withstand a challenge to a subpoena duces tecum, a party must make a preliminary showing to the court that the subpoena is justified[vi].  Further, the principal purpose of a subpoena duces tecum is to facilitate and expedite the trial and not to expand the discovery rights of the parties.

A subpoena duces tecum to obtain materials in advance of trial is issued only when the party seeking the materials proves factors such as the materials are evidentiary and relevant, the materials are necessary to prepare for trial and the application is made in good faith[vii].  However, it is not enough that the documents have some potential of relevance and evidentiary use.  There must be a sufficient likelihood that the requested material is relevant to the offenses charged in the indictment, and a sufficient preliminary showing that the requested material contains evidence admissible with respect to the offenses charged.  Further, conclusory allegations of relevance and admissibility are insufficient[viii].

It is to be noted that the application for a subpoena duces tecum must also show the necessity for the inspection or production.  A mere statement that inspection is material and necessary is not sufficient; the facts from which the court must determine the necessity must be stated positively and not argumentatively or inferentially.  If the application shows that there were other sources of information open to the party it must show an exhaustion of such sources[ix].

If the items specified in a subpoena duces tecum are in the possession of a foreign custodian in another country, this is not a valid ground for their nonproduction.  However, the foreign location of the items can affect the power or ability of the subpoenaed person or corporation to produce them and under some circumstances, the noncompliance with the subpoena is excused.

It is to be noted that a subpoena duces tecum can only be challenged by the person to whom it is directed or by a person whose property rights or privileges can be violated.  The approved method of testing the relevancy and materiality of documents required by a subpoena duces tecum is to move to quash, vacate, or modify it[x].  However, the decision to quash a subpoena duces tecum rests in the discretion of the court.  A witness upon whom a subpoena duces tecum is served has a right to question the validity of the writ and the duty to produce the relevant papers.

In a civil case, the usual grounds for quashing a subpoena duces tecum are unreasonableness or oppressiveness[xi].  The burden is on the moving party to show why documents responsive to the subpoena should not be produced.

Generally, the invalidity of a subpoena duces tecum can be asserted by way of defense in a contempt proceeding instituted for disobedience of the subpoena or in an injunction suit, prohibition proceeding, or by certiorari.

[i] Imparato v. Spicola, 238 So. 2d 503 (Fla. Dist. Ct. App. 2d Dist. 1970).

[ii] Vaughan v. Broadfoot, 267 N.C. 691 (N.C. 1966).

[iii] People v. Owens, 188 Misc. 2d 200 (N.Y. Sup. Ct. 2001).

[iv] Hernandez v. State, 350 So. 2d 792 (Fla. Dist. Ct. App. 3d Dist. 1977).

[v] State v. Watson, 1999 ME 41 (Me. 1999).

[vi] Id.

[vii] United States v. Shinderman, 232 F.R.D. 147 (D. Me. 2005).

[viii] United States v. Jackson, 155 F.R.D. 664 (D. Kan. 1994).

[ix] Keiffe v. La Salle Realty Co., 163 La. 824 (La. 1927).

[x] Southern Pacific Co. v. Superior Court of Los Angeles County, 15 Cal. 2d 206 (Cal. 1940).

[xi] Joseph L. Lee, Inc. v. Margon Corp., 18 F.R.D. 390 (D.N.Y. 1956).

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