Building a Case with Subpoena Duces Tecum in NYC: How to Use This Privilege to Build Your Case

Civil and criminal cases are delicate, and litigators in New York build them by filing a subpoena for pieces of evidence and statements.

There three kinds of subpoena issued by NYC courts:

  1. Ad testificandum, which calls a witness to the court hearing (subpoena to testify)
  2. Information subpoena, which is a legal request for information
  3. Duces tecum, which requires specified documents and writings be brought to court (subpoena for records)

Of these three, a subpoena duces tecum (which translates as, under penalty, you shall bring with you) helps substantiate your cases by providing relevant, tangible items of evidence.

The Nature of Subpoena Duces Tecum

A subpoena duces tecum is a type of court order that requires a witness to produce and bring specific physical evidence. This is often used in conjunction with a subpoena ad testificandum: both compels a witness to bring documents that could help support his or her testimony. You can file for subpoenas to testify and for records for a civil litigation in New York when a deposition has been scheduled.

The documents requested must be relevant to the case, something that will be determined by the attorneys and judges involved. Should the other party make a compelling argument that a document is irrelevant to the outcome of the case, then the subpoena may be denied.

What Documents Can You Request?

Each case is unique, and there’s no telling what kind of document or data could be critical. But there are types of documents that are so commonly asked for that they’ve become routine.

These commonly requested materials include the following:

  • The case notes
  • Copies of any report that the expert has written
  • Copies of any report the expert prepared or that was prepared by their direction
  • Any form of communication the expert had with anyone about the case, such as emails, notes, or summarized phone call
  • The retainer or contract for the expert
  • Scientific articles that were used to make conclusions regarding the case
  • Scientific texts, professional publications, or technical articles that relate to the expert’s testimony or were used in forming their opinion
  • Copies of anything published by the expert
  • The expert’s complete files on the case
  • Any document or data that the expert used to draw their conclusions, even data and information shared by the party’s attorney, if these were used to form their conclusions
  • Copies of the expert’s curriculum vitae or any license and membership

However, some forms of data are protected even from a subpoena duces tecum. There are ways it can be denied or circumvented.

What Kind of Data is Protected?

Privileged information, such as those between doctors and their patients, is deemed protected data. Another way a document or information can be considered beyond the scope of a subpoena duces tecum is if it’s unreasonably inaccessible or costly to do so. Certain types of electronically stored information could be very difficult to access and cause undue burden, which an attorney may argue to circumvent the subpoena.

Moreover, a subpoena duces tecum cannot be used to obtain a huge vault of records from which a legal party can fish relevant evidence. The subpoena should define the exact document/s that the respondent must produce. By stating the specific records needed, the respondent can swiftly provide it without an unnecessary extensive search. The subpoena details:

  • The title of the specific document needed
  • The case and the contact information of the party asking for the document
  • The precise date, time, and place to bring the document

The subpoena duces tecum could only be used to produce documents that are in the respondent’s possession or under his or her control and supervision. If the materials in question are not within the respondent’s authority, the respondent does not have to produce them.

Every piece of information is a much-needed tool to achieve success in every case. With the documents provided by a subpoena duces tecum, you can make a stronger case in a New York court.

Challenging a Subpoena Duces Tecum

Determining whether a subpoena duces tecum should be enacted falls within the discretion of the court. It can be challenged by a motion to quash or modify the subpoena.

The court may quash or modify a subpoena that:

  • Gives an unreasonable time for the person to comply
  • Requires a person to comply beyond geographical limits
  • Requires the disclosure of privileged or other protected information
  • Subjects a person to undue burden
  • Discloses a trade secret or confidential commercial information
  • Disclose an unretained expert’s opinion that does not describe occurrences in the dispute

It could also be challenged by a motion for a protective order. A protective order is sought to protect a party or person from the embarrassment, undue burden, or expense of disclosing the documents within the terms. If the court issues a protective order, it excuses the person from having to produce the records.

However, if the subpoena is enforced and served by a subpoena server, the person served must comply with it. Else, the requesting party may ask a judge for a motion to compel, a formal court order that commands the person to comply or face penalties.

A Substitute Subpoena

Filing a subpoena for records is ideal if your witnesses are reluctant to be on the stand. Instead of relying solely on oral testimony, a subpoena duces tecum supplies the physical documents admissible before the court. These records could provide evidence supporting your arguments.

That said, a subpoena duces tecum does not require oral testimony from the individual who has produced the documents. It cannot be used to compel them to reiterate, paraphrase, or affirm the truth of the records. However, matters change if combined with a subpoena ad testificandum; the person in question is, therefore, commanded to bring the document and certify that it is accurate.

Timely Legal Support Services in New York

Serve Index LLC provides you with timely and accurate legal assistance services to help with your work. Our skilled team of process servers and public notaries provide such services as skip tracing, process service of subpoenas, and court filing.

If you seek to serve a subpoena duces tecum in New York, trust the expertise of Serve Index. We have dedicated licensed process servers who will remove the burden of locating the respondent and serving the subpoena off your shoulders. Our servers know how to handle respondents who evade or resist serving. They are qualified neutral parties who will get the job done promptly and ensure the service of process goes as it should.

Call us today and connect with one of the most trusted process service providers in New York.

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