What is a discovery subpoena?
Now that we’re moving on to the last discovery device–the one probably most lay people are familiar with–depositions, I thought it prudent to discuss subpoenas first.
[Please see the earlier installments of this series on discovery, beginning with What is discovery, and what are interrogatories?]
Now, there are different types of subpoenas. But first, what exactly is a subpoena? Simply put, it’s Latin for “under penalty,” and is a formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony, Another way of putting that it is a writ issued by a court of justice requiring a person to appear before the court at a specified time and give testimony. Since deposition testimony is recorded under oath and under threat of perjury, a subpoena may be issued upon non-parties to require their attendance to a deposition and give testimony. A subpoena is NOT necessary to be issued upon parties to the suit, as their testimony is considered part of the regular discovery process (I’ll cover that in a later post on depositions).
There are generally two types of subpoenas: a trial subpoena, and a discovery subpoena. To see an example form for a federal trial subpoena, go here. A federal discovery subpoena form may be found here. As is my ususual custom, however, I am referring to Texas rules, and in this case to a Texas discovery subpoena (to see your own state’s subpoenas, simply Google them).
In most cases, a subpoena is issued to compel a non-party to give testimony and produce documents. A subpoena may be accompanied by a document listing items, such as documents and things, to bring to the deposition–this is known as a subpoena duces tecum. These documents and things are typically vital to the case and will wind up being numbered and entered as exhibits. Remember that deposition testimony is the same as giving testimony in court, that is to say, it’s under oath (more on that in our next installment) and the documents or things that are entered as exhibits during the deposition become part of the official court record.
Here is an example of a subpoena duces tecum:
NOTICE OF PARTIES’ ORAL DEPOSITIONS
WITH SUBPOENA DUCES TECUMJane Doe, Plaintiff, by her attorneys, ABC Attys, pursuant to the Texas Rules of Civil Procedure, will take the depositions upon oral examinations of the following persons on the dates and at the times indicated, in the Office of ABC Attys, 210 Elm Street, Suite 100, Houston, TX 77002, and continuing from day to day until the deposition is complete.
DEPONENT: Steve SueMe
TIME: 2:00 p.m.
DATE: September 10, 2011
The deponents is to produce the following documents at the above-listed time and place:
- Any contract, correspondence, or downloaded communications regarding any maintenance and/or dirt removal service in effect at the time of Plaintiff’s injury.
- Any contract between the Defendant and any person or entity responsible for caring for the premises at the time of Plaintiff’s injuries.
- Any indemnity agreement between any of the parties to this case.
- Any indemnity agreement between any party to this case and nonparty which is relevant to the accident and injuries which have been made the basis of this suit.
- Any rules, management guidelines, operating guidelines, or other similar writing or document that purports to show operating procedures for the management, care, maintenance, repair, and service of the premises in question.
- Any and all photographs that Defendant has of the scene of the accident or the resulting injuries to the Plaintiff.
- Any and all expert reports which have been obtained from any expert and if a report has not been prepared, the preparation of a report is hereby requested.
- Copies of any and all statements previously made by Plaintiff or any other witnesses concerning the subject matter of this lawsuit, including any written statement signed or otherwise adopted or approved by the Plaintiff hereto and any stenographic, mechanical, electrical or other type of recording or any transcription thereof made by any person hereto and contemporaneously recorded.
- Any and all drawings, maps or sketches of the scene of the accident which has been made the basis of this lawsuit.
- A copy of any surveillance movies or photographs which have been made of the Plaintiff.
- All materials including, but not limited to, employee manuals, memoranda, and correspondence pertaining to safety rules and/or regulations to be followed by the employees to ensure homeowner safety on common space areas. This includes any training films and/or videotapes used by Defendant concerning homeowners’ spills and/or falls.
- All premises inspection reports or other documents relating to observation of common areas safety by any person or entity, including Defendants, for the premises in question, for a period of one (1) years prior to, and all dates subsequent to February 21, 2011.
- Copies of any and all documentation, including but not limited to clean-up orders, log books, journals, and service orders relating to the cleaning and maintenance of Defendant’s common areas, which set forth all requests for clearing of snow and ice verification that each request was completed, including the name of the employee who requested the work and the name of the person who carried out the service on February 21, 2011.
- Copies of any interviews or statements with alleged witnesses to the incident. if any.
Any noncompliance may be cause for contempt of court. In Texas, a subpoena may be issued by an attorney, a court clerk, or a deposition officer. Any challenge to the subpoena must be made before the time specified for compliance. In most cases, attorneys work these agreements out amongst themselves if not amicably, then at minimum civilly, and there is usually no need for court involvement, though a subpoena on a non-party must be filed with the court (but not if it is to a party to the lawsuit–more on that later).
There are more details for discovery subpoenas which can be found in the Texas Rules of Civil Procedure, generally under Rule 176 et seq (Et seq is just a fancy [latin] way of saying “and the following,” meaning the following sub-parts of the rule). For federal cases, see Rule 45.
Now, more on the actual depositions themselves next!
For more info:
Hirsh/Warne Discovery Cheat Sheet
Federal Rules of Civil Procedure
For additional helpful background information, please see “A primer on all the different types of courts”
Happy discovering!!
Please note that I am not an attorney and nothing I have written is meant to be taken as legal advice. If you need such advice, it’s suggested you contact an attorney licensed to practice law in your state.
TIP: Try Googling for your state, county, or particular judge’s website. You might be surprised how much information you can find there. You may also call the clerks to ask questions; just keep in mind court clerks are very busy, so it would behoove you to be on your best manners when making inquiries.
For more info: Always remember to check your own state’s rules, and any local rules that may apply! For an overview of civil procedure, go here.
Please see other articles in this series:
What is discovery, and what are interrogatories?
Discovery II: What are requests for disclosure?
Discovery III: What are requests for admissions?
Discovery IV: What are requests for production?
LegallyBlog® by Sami K. Hartsfield, ACP 
I would like to know how long it took you to plan, research and write all this information.
Remarkably well written writing!