What is a Subpoena Duces Tecum?
How do you legally define it?
What are the essential elements you should know!
In this article, we will break down the legal definition of Subpoena Duces Tecum so you know all there is to know about it!
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Table of Contents
What Is A Subpoena Duces Tecum
A subpoena is a court summons (or order) to the receiving party to appear before the court and bring documents, evidence, material, or other tangible evidence in connection with a lawsuit.
The purpose of a subpoena duces tecum us to summon a person (the witness) to deliver documents or evidence to be used in an upcoming trial or to appear in person and present the requested evidence.
The term “subpoena” is a Latin term meaning “under pain” or “subject to penalties”.
The term “duces tecum” in Latin means “bring with you”.
As a result, the literal translation of the Latin phrase subpoena duces tecum means “you must bring with you under pain”.
In plain English, it means you are ordered to bring certain documents, or material evidence in your possession to court for a hearing failure of which you will face legal penalties and consequences.
In many jurisdictions, the Latin phrase continues to be commonly used when ordering a witness to produce a document.
Some jurisdictions have changed the Latin phrase to “subpoena for production of evidence” using plain English in an attempt to reduce complicated legal jargon when dealing with the court.
What does a “subpoena” mean?
What is the difference between a subpoena and subpoena duces tecum?
A “subpoena” is a writ or court order summoning a person to appear before the court and testify.
Broadly speaking, the term subpoena means that a person has been called to court to appear before a judge or jury.
A subpoena “duces tecum” is a more specific type of subpoena.
In essence, it’s a writ requiring someone to appear before the court (subpoena) but also to bring and produce documents (duces tecum).
The documents, evidence, or material that may be requested in a subpoena can include:
- Medical records
- Ownership deeds
- Computer files
- Accounting records
Any material, document, or evidence that may be relevant for the court to render a judgment in a dispute may be requested.
How do you define subpoena duces tecum?
The Cornell Law School’s Legal Information Institute defines subpoena duces tecum as follows:
A subpoena duces tecum is a type of subpoena that requires the witness to produce a document or documents pertinent to a proceeding. From the Latin duces tecum, meaning “you shall bring with you”.
A subpoena duces tecum serves two purposes:
- Compel a person
- To produce documents
The service of a subpoena duces tecum must be done in person for it to have a legally compelling effect.
In most cases, the courts or attorneys representing litigants will prepare the required subpoena and have it served through a process server.
In some jurisdictions, the process servers are called bailiffs.
Once the process server serves the person in question, he or she will prepare either an affidavit of service or provide some form of service certification proving that the person was “served”.
A judicial subpoena duces tecum cannot be served electronically, in person, or by mail unless it is specifically authorized by the court or the judicial body.
With the subpoena, the recipient will generally receive a notice providing the person with overall instructions as to what is the document they just received, what they must do, by when, how, and what will happen if they don’t comply.
Subpoenas must be served to the recipients in accordance with the applicable rules of civil procedures.
For example, under the Federal Rules of Civil Procedure, FRCP 34 (or Rule 34) governs the production of documents, electronically stored information, tangible things, or the entering onto land for inspection or another purpose in regards to a deposition.
Rule 27(a)(3) FRCP governs the production of documents in pretrial discovery.
If a party does not respect the applicable civil rules of procedure when serving a subpoena, then the recipient may escape the subpoena on technicalities.
The receiving party may file a motion to quash subpoena to invalidate the subpoena, have the court modify its scope, or make other modifications to render it valid.
Typically, a subpoena duces tecum will be served to a person using a legally mandated form or template.
Here is the subpoena duces tecum used in civil matters in the Commonwealth of Virginia published on the State Court’s website:
Failure To Comply
What happens if a person fails to comply with a subpoena duces tecum?
What will happen if you ignore a subpoena?
It’s important to keep in mind that a subpoena is an order from the court requiring the receiving party to produce documents.
The law provides the court with powers to ensure the proper administration of justice.
An aspect of this power is to have the ability to compel individuals falling under its jurisdiction to provide documents it needs to resolve a pending dispute.
If a person receives a valid subpoena and does not comply, the person will be exposed to be found in contempt of court and sanctioned.
The penalties can range from fines all the way to jail time even in civil matters.
It’s crucial to comply with a subpoena when you receive one.
If you believe that what is asked from you is excessive, unreasonable, or not possible, you must consult an attorney to explore your legal options.
Subpoena Duces Tecum vs Subpoena Ad Testificandum
What is the difference between a subpoena ad testificandum and duces tecum?
A subpoena duces tecum shares certain characteristics with a subpoena ad testificandum but also is different in certain respects.
Both subpoenas “duces tecum” and “ad testificandum” are orders from the court requiring the receiving party to do something in the context of a lawsuit.
In essence, when a person receives a subpoena, he or she must comply to avoid legal consequences.
A subpoena duces tecum does not require a person from testifying in court or providing any form of oral testimony.
However, it requires that the person appear in court to deliver documents in person or make the necessary arrangements to ensure the documents or evidence are produced.
A subpoena ad testificandum is a type of subpoena summoning a person to appear in court and provide oral testimony.
With this type of subpoena, the witness is not required to produce any documents.
Subpoena Duces Tecum Takeaways
So what is the legal definition of Subpoena Duces Tecum?
What does subpoena duces tecum mean?
Let’s look at a summary of our findings.
Subpoena Duces Tecum Means
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