March 25, 2025

Civil Subpoenas Duces Tecum

By Laura Trachtman
One of the questions I get most often from panicked clients is this: “I got served with a subpoena. What do I do??” Usually, it’s a tempest in a teapot, but sometimes it’s not. Let’s break it down a little bit.

There are many, many different types of subpoenas:  subpoenas in criminal matters, in civil matters, in administrative matters. There are also different types of subpoenas: subpoenas asking the recipient to produce documents, and subpoenas asking the recipient to testify.  For brevity’s sake, I’m going to address the singular most common subpoena to cross my desk: the subpoena duces tecum in a civil matter in the New York State courts. 

I was about to reach for my father’s copy of Black’s Law Dictionary to get the actual Latin definition of the term, but no one wants that. [If you want that, subpoena is Latin for under penalty, and subpoena duces tecum is Latin for under penalty you shall bring with you.] A subpoena duces tecum is a subpoena asking the recipient to produce documents or evidence that is in their custody (i.e., they have them at their home or office) or control (they don’t possess the documents but can get hold of the documents).  The form of the subpoena can shift a wee bit, but that’s what the subpoenaing party wants from the person being subpoenaed. 

Who is the subpoenaing party? I’m glad you asked.  Chances are good that it’s an attorney representing a client who is currently a party to a matter in the state courts. If it is, that’s the best option for the person being subpoenaed. Attorneys are allowed to issue subpoenas on behalf of their clients during a case.  Here’s the catch: Attorneys do not have enforcement power, so that subpoena is a paper tiger.  

Most serious is when the subpoena is issued by a judge.  The courts naturally imbue their justices with enforcement power, but enforcing a So-Ordered subpoena, which is a subpoena that a judge has reviewed and signed and thus carries the weight of the court behind it, can be a real pain.  

Finally, some jurisdictions allow a clerk of the court to issue a subpoena, and New York Supreme Court is one of those, but like the subpoenas issued by an attorney, this is without teeth.  If you really want to be able to enforce your subpoena, you must convince a judge to sign it. 

I’ve discussed enforcement of the subpoena, but what does “enforcement power” really mean?  Broadly speaking, it means that if the judge tells you to do something (or don’t do something), you’d better obey, or else the judge can punish you by, among other things, holding you in contempt of court.  (I was once banned from a courtroom for life, but that’s a story for another time.)  The penalties associated with being held in contempt of court include a fine and a term of imprisonment. Best not to make that judge angry by disobeying the judge’s order. 

In sum: what you do when you’re served with a subpoena really depends on who has issued the subpoena, and whether disobeying the subpoena means you’re going to get hauled into Court to face an irate judge, or whether absolutely nothing will happen to you.