Subpoena Duces Tecum: How It Works and How to Quash One

A subpoena duces tecum (Latin: "bring with you under penalty") is a court order commanding a non-party to produce documents, electronically stored information, or tangible items, with or without an accompanying deposition. It is the primary tool for obtaining evidence from non-parties in American civil litigation. Federal Rule of Civil Procedure 45 governs federal subpoenas duces tecum, and parallel state rules govern state-court subpoenas. Compliance is mandatory, but Rule 45 also gives the recipient and the parties multiple paths to object, modify, or quash.

Subpoena Duces Tecum vs. Subpoena Ad Testificandum

A subpoena ad testificandum Commands the recipient to appear and testify (at deposition, hearing, or trial). A subpoena duces tecum Commands the recipient to produce documents or items, often combined with testimony. The two can be issued together (a deposition subpoena combined with a document request) or separately (a pure document subpoena under FRCP 45(a)(1)(A)(iii)). The substantive standard for objections is similar but the procedural posture differs.

What Rule 45 Requires

Component	Rule 45 Requirement
Issuing court	Must issue from the court where the action is pending
Place of compliance	Within 100 miles of recipient's residence, employment, or place where they regularly transact business
Notice to other parties	Required before service if the subpoena commands document production (Rule 45(a)(4))
Service	Personal delivery or, in some districts, certified mail
Witness fees	One day's attendance plus mileage tendered at service for testimony subpoenas
Privilege log	Required for withheld materials (Rule 45(e)(2)(A))

Objections to a Subpoena Duces Tecum

The recipient may serve written objections within 14 days of service or before the time for compliance, whichever is earlier (Rule 45(d)(2)(B)). Common grounds: privilege (attorney-client, work product, doctor-patient, spousal), undue burden (the request is overly broad or disproportionate to the case), trade secret or confidential commercial information, or the request seeks information beyond the geographic limits of Rule 45(c). Once written objections are served, the requesting party cannot enforce the subpoena except by court order.

Motion to Quash or Modify

The recipient may file a motion to quash Or modify under Rule 45(d)(3). The court must Quash if the subpoena: (1) fails to allow reasonable time for compliance; (2) requires a non-party to travel beyond the 100-mile limit; (3) requires disclosure of privileged or other protected matter and no waiver applies; or (4) subjects the recipient to undue burden. The court may Quash for trade-secret protection, expert-opinion protection, or substantial burden on a non-party. The motion must be filed in the issuing court (the court where the action is pending) for federal subpoenas under the 2013 amendments.

Notice to Other Parties

Rule 45(a)(4) requires that, before serving a document subpoena on a non-party, the issuing party serve a copy on every other party. The notice gives other parties the opportunity to object or seek a motion for protective order. Failure to give notice is a procedural defect that can support a motion to quash or sanctions, particularly when the subpoena seeks confidential information about another party.

Compliance Procedures

The recipient produces documents either at the time and place specified or by sending copies to the requesting party. Documents may be produced as kept in the ordinary course of business or organized to correspond to the request categories (Rule 45(e)(1)(A)). Electronically stored information must be produced in the form specified or, if none, in a form that is reasonably usable. The recipient may withhold privileged documents but must produce a privilege log identifying the document, sender, recipient, date, and basis for privilege under Rule 45(e)(2)(A).

Cost-Shifting

Rule 45(d)(2)(B)(ii) provides that the requesting party must protect the non-party from "significant expense resulting from compliance." Courts often shift costs of large electronic productions, document review, and expert vendor fees to the requesting party. The non-party's use in cost-shifting is substantial; a motion under Rule 45(d) alongside an objection often produces a negotiated cost-sharing arrangement.

Subpoena Duces Tecum in Criminal Cases

Federal Rule of Criminal Procedure 17 governs criminal subpoenas duces tecum. The Supreme Court's United States v. Nixon Three-part test requires the requesting party to show (1) relevance, (2) admissibility, and (3) specificity. Rule 17 subpoenas may not be used as a discovery device in criminal cases, only to compel production of admissible evidence at trial.

Related Civil Procedure Guides

• interrogatories vs. Requests for production
• Rule 37(a) motion to compel
• FRCP 36 requests for admission
• FRCP 34 requests for production
• quash motion standards

Frequently Asked Questions

What is the difference between subpoena and subpoena duces tecum?

A "subpoena" alone (subpoena ad testificandum) commands the recipient to appear and testify. A "subpoena duces tecum" commands the recipient to produce documents, ESI, or tangible items, with or without accompanying testimony. The two can be combined (a deposition subpoena that also commands document production) or issued separately. Rule 45 governs both in federal court.

What are the two types of subpoenas?

The two types are subpoena ad testificandum (commands testimony) and subpoena duces tecum (commands production of documents or items). A combined subpoena commanding both is the most common form. The procedural rules under FRCP 45 apply to both, but the geographic limits, notice requirements, and motion practice differ slightly between testimony-only and document-production subpoenas.

What is the purpose of a subpoena duces tecum?

The purpose is to compel a non-party to produce documents or evidence relevant to a pending case. Parties to a case use document requests under Rule 34. Non-parties produce only under subpoena. The subpoena is the primary mechanism for obtaining records from banks, hospitals, employers, telephone companies, and other custodians who are not litigants in the case.

What is a subpoena duces tecum most similar to?

The closest analogue is a Rule 34 document request served on a party, but without the party relationship. Both compel production of documents within the responding entity's possession, custody, or control. The subpoena duces tecum extends that mechanism to non-parties, with additional procedural protections (the 100-mile limit, cost-shifting under Rule 45(d)(2)(B)(ii), and the privilege-log requirement of Rule 45(e)(2)(A)).

When to Hire a Lawyer to Issue or Quash a Subpoena

Subpoenas duces tecum are powerful but procedurally exacting. Our litigation team issues, opposes, and quashes subpoenas duces tecum For federal and state-court litigation, with full Rule 45 compliance and motion-to-quash practice.