A subpoena duces tecum is a court order requiring a person to appear before the court with certain documents or papers in hand. The subpoena is essentially a subpoena for production of evidence, and is an important facet of trial law in common law countries. Common law countries include the United States, Great Britain, Canada, and Australia. If a person receives a subpoena duces tecum, he must, under penalty of law, gather the specified documents and bring them to court on the appointed day. One of the only ways out of a subpoena duces tecum is a showing that the documents are subject to a privilege that exempts their production.
One of the characteristic attributes of the common law trial system is the discovery process. In discovery, both parties to litigation have the opportunity to request any and all relevant information from each other. Parties can only surrender information that they actually have, however. If one party requests relevant information that the other party does not control, the court is often asked to issue a subpoena duces tecum to get that information. Courts use the subpoena to ensure that the fact-finder is able to consider a sufficiently wide body of evidence before making a decision.
The rules about how the subpoena must be served and the time in which the recipient must respond vary by jurisdiction, but most of the time, a subpoena duces tecum must be served in person. If the recipient has the information described in the subpoena, the subpoena compels him to deliver that information personally to the court on the date listed. He also usually must be prepared to testify about the documents, their contents, and the circumstances of their creation.
The personal presentation requirement makes a subpoena duces tecum materially different from a subpoena ad testificandum, which is another tool the court can use to gain evidentiary information. An ad testificandum order requires a person to appear and give testimony about certain documents or happenings, but it does not require the production of anything tangible. In a duces tecum situation, there is testimony about a document concurrent with that document’s admission into the material evidence of the case.
Almost any document can form the basis of a subpoena duces tecum. Business records, financial statements, medical records, telephone transcripts, and cell phone records are all examples of documents that can be subpoenaed under a duces tecum order. Some of the only documents that are not subject to subpoena are those that are protected by a privilege.
Common law jurisdictions recognize, with relative unanimity, a physician-patient privilege, an attorney-client privilege, and a reporter’s privilege, among others. The contours of what qualifies as privileged material varies by jurisdiction, but the spirit of each privilege is to protect confidential conversations in situations where treatment, outcomes, or accurate information require trust. Privileged information cannot usually ever be compelled as evidence.
The burden is on the subpoena recipient to prove that the requested documents are protected by a privilege. If the recipient cannot make that showing, he usually has no option but to produce the documents in court on the date stipulated. Courts will sometimes grant continuances to give recipients more time to appear, usually in cases where locating the requested information is demonstrably burdensome. Again, the burden is on the recipient to ask for a continuance. In the absence of a recognized privilege or a continuance, a recipient who fails to respond to a subpoena duces tecum can face contempt of court charges, fines, and, in some jurisdictions, jail time for obstructing justice.
