What do I do about a subpoena duces tecum?

Recently on our forum a user asked, “I have recently received a subpoena duces tecum. What actions should I take now? Do I need a lawyer?”

If you have been issued a subpoena duces tecum (which literally means “you will bring with you under penalty of punishment”) this is a subpoena for a production of evidence, which means rather than testify, the court is ordering you to bring other evidence for the case, which can include papers, medical records, hand books, deeds of ownership, computer files, etc.

This request is generally made as part of legal discovery, which allows all parties in the case an opportunity to review specific pieces of evidence prior to a hearing or deposition.

Where do I take the request items?

Historically, requested items were taken to the court where the case was being heard. Now, however, the requested items should generally be delivered to the legal offices of the attorney who made the request. If you have any questions about delivery you can review the subpoena, which should include the date, time, and place of delivery. Note, the subpoena will have a deadline for delivery.

What if I have no records to produce as described in the subpoena?

If you have received a subpoena but you do not have the records or documents which have been requested you are not required to create documents that do not exist, or to procure documents not in your possession or control.  It is important, however, to notify the subpoenaing party in writing that you do not have the requested evidence.

Additionally, if you receive a subpoena duces tecum for information which is considered privileged (i.e., attorney-client privilege or doctor-patient privilege) you need to be very careful about disclosing the information and invading someone’s privacy or breaching a confidential relationship.

If you believe this is possible, you will need to put the information in a sealed envelope, mark the envelop as “privileged,” and notify the court. The notification should be reviewed by the judge who can determine how the information should be protected.

Do I have to turn over original documents?

In some cases, the evidence requested through the subpoena may not have to be original documents. In fact, often the requestor will be satisfied with copies. If you have questions about this you need to contact the requestor.

What if I do not comply with the subpoena duces tecum?

Failing to comply with a subpoena duces tecum may result in a variety of penalties. Specifically, if you decide not to comply with the subpoena and you simply ignore it, never providing any good reason not to produce the documents, you my face contempt of court charges.

Punishment can vary. For example, you may be charged a monetary fine or you could be jailed. Before any penalties are assessed, however, a hearing will be held, and you will be allowed to provide information about your failure to comply. The court will have broad discretion to determine the penalties assessed against you.

What else do I need to know about my subpoena?

Two additional things you need to know about your subpoena- you can be reimbursed for the costs of producing the documents, including any travel costs you have incurred, and in some cases, you also may be called to testify, in addition to providing information.

Do I Need an Attorney?

Although some information can be given to the court without talking to a lawyer, there are specific times when you should talk to a qualified attorney before disclosing any information. For example, if the court is requesting any type of information which could be privileged (and potentially increase your risk of liability in disclosing the information) it is a good idea to seek legal help.