A subpoena duces tecum (pronounced in English ), 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. In some jurisdictions, it can also be issued by legislative bodies such as county boards of supervisors.
The summons is known by various names in different jurisdictions. The term subpoena duces tecum is used in the United States, and 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.
Etymology The phrase sub poena duces tecum is a Latin expression meaning literally "under [threat of] penalty [or punishment], you will bring [it] with you." The word means "under" and "penalty"; "you will lead, guide, pull, bring"; and "with you".
Order pursuant to a deposition In the United States, a notice to a party (to the action) 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.Federal Rules of Civil Procedure 30(b)(5), also called FRCP 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.
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.23 Am Jur 2nd Depositions and Discovery, §§ 126–127
Jencks Act criminal cases 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.Jencks v. United States, 355, US 657 (1957) 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.
If a remedy is granted, there is a mistrial and dismissal of criminal charges.23 Am Jur 2nd "Depositions and Discovery", § 443Jencks v. United States idem. An accused criminal has no right to subpoena the work product of the prosecution in a criminal case.23 Am Jur 2nd "Depositions and Discovery", § 444
US state court seeking to compel production of documents from a witness in another state The subpoena power of any state court in the United States generally ends at that state’s border."Securing the Attendance of Witnesses by Subpoena and Other Process," NC Defender Manual Vol. 2, Trial, Chapter 29 (2018).Rhonda Wasserman (1989). "The Supoena Power: Pennoyer's Last Vestige," 74 Minnesota Law Review 37. Consequently, lacking any powers outside the state's border, state prosecutors and defense attorneys in a state criminal case cannot use the same procedures that they would use to obtain a subpoena for an out-of-state witness that they would for an in-state witness.Darrell E. White II (May 18, 2021 ). "Subpoenaing Out-of-State Witnesses in Criminal Proceedings: A Step-by-Step Guide," National Association of Attorneys General.
Compelling a foreign corporation to produce documents A domestic corporation may be considered to be a "person" within the meaning of the Fourteenth Amendment of the United States Constitution. It is not necessary to treat a corporation as a person in all circumstances. United States case law is confusing concerning this matter when dealing with foreign corporations, and their operation within the United States. Especially troubling have been rulings concerning the Fourth Amendment of the United States Constitution and Fifth Amendment to the United States Constitution. A foreign agent may not claim Fifth Amendment provisions against self-incrimination. Nor can records be withheld from subpoena duces tecum on the grounds that production of such documents would incriminate officers or other members of the foreign corporation. However, there is case authority in which foreign corporations have been protected from illegal searches and seizures, including documents and books.See case law: 120 ALR 1103 The matter of a foreign corporation operating as a "person" within the United States being afforded protection under the Fourteenth Amendment is discussed.49 ALR 73277 ALR 149036 Am Jur 2nd "Foreign Corporations", §§ 44 and 45
Failure to produce documents In the United States, a continuance (a rescheduling of a court hearing to 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.17 Am Jur 2nd "Continuance",§ 20
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.17 Am Jur 2nd "Continuance", § 81
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.Ex Parte Clarke, California39 Am Jur 2nd "Habeas Corpus", § 97
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.Cases listed and discussed in 81 ALR 3rd 1297, §§ 3 (b), 8 (a), 9 (a)
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.Generally 61 ALR 3rd 129781 Am Jur 2nd "Witnesses", § 79
Writ of mandamus vacating an order to produce documents A writ of mandamus (Latin for "we command") 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.Rosenthal v. Dickerman, Michigan Mandamus can vacate an order to produce books and papers.International Harvester Co. v. Eaton Circuit Judge, Michigan
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."52 Am Jur 2nd "Mandamus" § 314
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).Smith v. Superior Court of San Joaquin County, California88 ALR 2nd 650For mandamus as it generally applies to witnesses, see: 41 ALR 433 and 112 ALR 438
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.Continental Oil Co. v. United States, Arizona9 ALR 3rd 1413 Presumably, this would apply to attorney work product, although there is no case law on the matter.52 Am Jur 2nd "Mandamus", § 367, Grand Juries
Public access to documents filed with the court