SUBPOENA DUCES TECUM

[Latin, Under penalty to bring with you.] The judicial process used to command the production before a court of papers, documents, or other tangible items of evidence.

A subpoena duces tecum is used to compel the production of documents that might be admissible before the court. It cannot be used to require oral testimony and ordinarily cannot be used to compel a witness to reiterate, paraphrase, or affirm the truth of the documents produced.

Although frequently employed to obtain discovery during litigation, a subpoena duces tecum may not be used for a "fishing expedition" to enable a party to gain access to massive amounts of documents as a means of gathering evidence. The subpoena should be sufficiently definite so that a respondent can identify the documents sought without a protracted or extensive search. Moreover, a person ordinarily is required to produce only documents in her possession or under her control and supervision. A subpoena duces tecum may be used to compel the production of the papers and books of a business, however.

A subpoena duces tecum is not limited to parties to a lawsuit but may also be used for others who have relevant documents. In the absence of a valid excuse, an individual served with a subpoena duces tecum must produce the items sought, although a subordinate may comply instead. A subpoena duces tecum may be challenged by a motion to quash, modify, or vacate the subpoena or by a motion for a protective order. The subpoena might not be permitted if alternative methods for obtaining the information sought are available. Determining whether a subpoena duces tecum should be enforced is a discretionary matter within the judgment of the court.