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What Is a Subpoena Duces Tecum?

April 29, 2024

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Robert J. Incollingo, Attorney at Law
401 Kings Highway South – Suite 3B
Cherry Hill, New Jersey 08034
Phone: (856) 857-1500

A subpoena is a paper used in a court or administrative proceeding to command a nonparty to appear and testify, and in the case of a subpoena duces tecum, to produce certain items or documents for use in the case (sub poena = under punishment, and duces tecum = bring with you). Threat of punishment makes a subpoena a form of “compulsory process” by which the government exercises jurisdiction over you and your property.

What Is a Subpoena Duces Tecum?

A subpoena is not a summons; by contrast, a summons orders you to appear in court as a party to defend claims made against you. Failure to appear in response to a summons can result in entry of default and default judgment. Failure to appear in response to a subpoena can result in penalties for contempt of court.

So, you ignore a properly drawn and served subpoena at your peril, and the remedy of the requesting party will be to have you ordered to appear in court and show why you should not be held in contempt. The court or administrative tribunal in which the subpoena is issued will very likely be jealous of its authority in this regard. Fines and even incarceration are possible sanctions.

When served with a subpoena duces tecum, read it carefully, noting the date, time and place for appearance, and the material you have been ordered to produce. Then call your lawyer and send her a copy of the subpoena for review and appropriate comment. It may be that local custom allows you to send copies of the documents to be produced without the need for your appearance. If so, you will probably have to sign a certification which will enable the use of the records as evidence without formal foundational testimony.

If your testimony will be required at the court proceeding along with the subpoenaed documents, bring the originals. For certain evidentiary purposes, only originals will do. Ask your lawyer about local rules that apply to documents maintained in digital format – it may be that you can have the costs of production paid by the requesting party.

Remember, when served with a subpoena or subpoena duces tecum, you need to act with the advice of counsel. Ask your lawyer if the subpoena seeks your expert opinion testimony without lawfully required compensation. If the subpoena is defective or illegally intrusive or burdensome, your lawyer may move the issuing authority for an order to quash the subpoena, which is to say, a directive that the subpoena is null and void and of no legal effect.

Most times, a subpoena duces tecum merely requires the custodian of records to swear that documents produced were prepared and maintained in the ordinary course of business, and that entries in the records were made at or about the dates or times noted. Other times, the records are an afterthought, and witness testimony is the main event. At all times, a subpoena duces tecum is a serious matter, which if ignored or mishandled, can cost the careless recipient his money, his liberty or both.

Bob Incollingo is an attorney in private practice in New Jersey and a regular speaker at Infraspection Institute’s annual IR/INFO Conference.

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