A subpoena for documents, or "subpoena duces tecum," is actually a court order telling you to produce documents or other objects at a legal proceeding, so you must appear with the documents at the place and time designated on the subpoena. If you fail to produce the documents ordered by the subpoena, you may be found in contempt of court and sanctioned with jail time and fines.
What Documents Do I Bring?
The subpoena should specifically and accurately describe the documents or other objects that you are to bring. Courts will set aside a subpoena if the descriptions of the documents are vague or imprecise. Only bring those documents that are specified in the subpoena; otherwise you risk subjecting yourself to a potential lawsuit for disclosing too much information (e.g., giving away the confidential information of a client).
What if the Documents Are Confidential?
You should carefully review each and every document that is being produced, preferably with an attorney. If the documents sought by the subpoena contain trade secrets or other sensitive information, a Court may find that the subpoena is inappropriate. Alternatively, the Court can issue an order that only attorneys or experts can view the confidential documents. If you and your attorney believe that the documents are protected by a legally recognized privilege (e.g., doctor-patient, attorney-client, marital), you should place the documents in a sealed envelope marked ¿privileged.¿ The judge will make a ruling as to whether or not the privilege is proper.
What if the Documents Are Irrelevant?
If you believe the documents sought by the subpoena are irrelevant, consult an attorney. To determine whether the documents are relevant, it will be necessary to understand the facts and issues of the lawsuit. If, after an investigation, it appears the documents are irrelevant to the lawsuit, an attorney can help you make the appropriate motions to the court to set aside the subpoena.
What if I Need More Time to Gather the Documents?
Subpoenas will often provide a very short timeline for producing the required documents. You have a right to seek an extension of time to deliver the documents, and in fact courts are generally sympathetic to such requests.
Do I Have to Testify, Too?
If, on the subpoena, the box for testifying is not marked, then you only need to produce the documents and will not be expected to testify. However, either party can re-subpoena you in the future to testify.
Will I Be Reimbursed for My Costs of Producing the Documents?
You are entitled to an attendance fee for bringing the requested documents to the courthouse. You will also be reimbursed for reasonable costs incurred in preparing the documents. This includes, but is not limited to:
- Transportation costs
- Photocopying costs
- Time spent locating and identifying documents
- Legal assistance retained in response to the subpoena
What if an Attorney Is Seeking Documents, but I Have Not Received a Subpoena?
If you have not received a formal subpoena, and you are not a party to the lawsuit, you may refuse to produce any documents.
Do I Need an Attorney?
If you have been subpoenaed to produce documents, you should consult an experienced attorney, especially if you think the subpoena seeks irrelevant, confidential or otherwise privileged documents. A lawyer can protect your rights and ensure that you do not subject yourself to liability by producing the wrong documents. A lawyer can also help you file an objection to the subpoena if there are legal grounds for doing so.