When a party is involved in litigation, he or she often needs to secure records that are in the hands of someone other than a party to the litigation. The legal process for obtaining records such as these is to prepare and send a non-party subpoena, also known as a subpoena duces tecum, in many jurisdictions. A party who receives a non-party subpoena is legally obligated to comply with the requests in the subpoena unless an objection or valid excuse is filed with the court and the court excuses the party from compliance.
A subpoena is an order from a court ordering a person or organization to appear before a court or to produce documents requested in the subpoena. In many cases, a party to litigation is in need of records that are in the custody of a third party. For example, medical records or telephone records may be crucial to the litigation at hand; however, those records are typically kept by a hospital or telephone service provider. Additionally, many organizations or businesses will not produce those records absent a court order requiring them to do so.
When a party needs to request records kept by a third party, a non-party subpoena is prepared and submitted to the court for approval. In some jurisdictions, an attorney has the authority to act as an officer of the court and issue the subpoena without prior court approval. If the jurisdictions where the case is pending does not allow attorneys to issue subpoenas, then the court will have to review the request and approve or deny the subpoena.
Once a non-party subpoena has been issued, the recipient is under an order of the court to comply with the terms of the subpoena. In most cases, this involves compiling and producing the records or documents listed in the subpoena. A person or organization can face contempt of court for failing to comply with a non-party subpoena.
If the recipient of a non-party subpoena feels that he or she has a legal reason for not complying, then an official objection must be filed with the court. For instance, if the records requested are protected under confidentiality laws, then the recipient must object to the request for that reason. Other common reasons, or valid excuses, for failing to producing documents or records requested in a subpoena include that the records or documents have been lost, stolen, or destroyed.