Nature of a Subpoena
A subpoena is an order from a court to an individual to appear at a trial, hearing or deposition, or to produce documents for inspection. A subpoena duces tecum, however, is solely a request for the production of documents or information. Normally, a party is not required by this subpoena to provide any oral testimony about the evidence. Parties in a lawsuit use the subpoena duces tecum before the trial begins as a way of gathering information relevant to the case.
Discovery is a process that takes place before a trial begins. As parties in a lawsuit are preparing their cases, they can request information from individuals, businesses or entities via a subpoena duces tecum. Once received, the requested documents are examined and can be entered into evidence. A subpoena duces tecum cannot be used indiscriminately, as on a "fishing expedition." Only specific documents relevant to the case can be requested. Lawyers cannot request large amounts of information in the hopes that some of it may prove useful.
Requirement of Possession
A person who receives a subpoena duces tecum is only required to produce documents that are actually under his control or possession. The rules state that the requested information must be provided in a reasonable, specified time period. However, the recipient of the subpoena does not have to appear along with the documents, unless he is separately called to appear by the court. The required documents may consist of papers, but a party may also have to produce electronically stored information.
Challenges to the Subpoena Duces Tecum
A party may challenge a subpoena duces tecum in several ways. Those not wishing to comply with the subpoena can file a motion to vacate, quash or modify, or file a motion for protective order. The court decides whether the subpoena duces tecum is valid. The court can refuse to uphold it if, for example, the court finds that there is another way to obtain the requested information. Further, a person can claim that having to produce the information will involve unreasonable costs or hardships. If a person does not comply with a valid subpoena duces tecum, the court can hold him in contempt.
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