The other day a couple paralegals and I sat together at happy hour discussing subpoenas. Several questions arose as we tossed around the general term subpoena and the more regal sounding Latin trinomial, subpoena duces tecum. At first, we simply argued over how to pronounce the latter. Then we turned to a deliberation over the difference between the two terms, and if indeed there was any significant difference? Are the terms interchangeable? If the terms refer to distinct legal commands, then when should each be invoked, and for what purpose? In the end, like good legal professionals, we agreed to disagree on what constitutes a subpoena duces tecum versus a standard “subpoena“.
In light of this dispute, I decided to dig deeper and I uncovered some answers:
To begin, we must define “subpoena“: a subpoena is a writ issued by a government agency, often a court, or by an attorney of record in the action who is thereby endowed with legal authority to act as an officer of the court.
There are two types of subpoenas – subpoena ad testificandum and subpoena duces tecum - which serve three common purposes: (1) to compel testimony before the court, (2) to compel presence at a deposition, or (3) to compel the production of tangible evidence. The subpoena ad testificandum is used for number (1) and (2) above, while the subpoena duces tecum is used for number (3).
Since subpoena ad testificandum is such a mouthful, it is often simply referred to as a “subpoena”; so, the general term “subpoena” refers to a writ summoning an individual to the court or to a deposition, whereas, the specific term “subpoena duces tecum” refers to a writ summoning the production of evidence pertinent to the case.
The term subpoena duces tecum is literally Latin for “bring with you under penalty of punishment”. Not to confound matters further, but, in many states a subpoena duces tecum is referred to as a “subpoena for the production of evidence”. (Note – several states are attempting to reduce the usage of non-English words in court terminology. Furthermore, the legal lexicon is not employed uniformly from state to state. What may be referred to as a “subpoena duces tecum” in one state may be referred to as a regular ol’ “subpoena” in another.)
The main difference between a “subpoena” (subpoena ad testificandum) and a subpoena duces tecum is that the subpoena duces tecum does not require the subject to give oral testimony. The subpoena duces tecum only commands the subject to produce the items named in the document. In the past, it was far more common for the subject to bring the items with her/him to the court; however, nowadays it is normal for the subject to mail or deliver the items to the attorney’s office or to the office of a record retrieval company such as MEDRECS.
It should now be clear that in our world of personal injury and other medical related litigation, we almost always deal with subpoena duces tecum. Medical related litigation relies heavily upon the acquisition of medical records and other information from healthcare entities such as hospitals and doctors’ offices. Such information provides the evidence which constitutes the crux of many cases. Therefore, it is very common for a subpoena duces tecum to be used to compel the production of vital material such as medical records, billing records, x-rays, pharmacy records, billing codes, pathology material, employment records, labor and industries records, and the list goes on.
During the process of discovery, requests for records are typically sent to healthcare providers which seek the production of medical records and other key documents. It is not uncommon, however, for insufficient or incomplete information to be produced by the healthcare facility, or, in some cases, no information is produced at all. For this reason, the subpoena duces tecum is an effective way to compel healthcare providers to produce complete and accurate evidence, which is specifically outlined in the subpoena. Failure to produce the information listed in a subpoena may open the healthcare provider to penalty.
If you have any questions about the subpoena service process, whether a subpoena is appropriate or necessary, or if you seek assistance in the preparation and service of a subpoena, please feel free to contact MEDRECS.