Also known as: deposition subpoenas duces tecum · subpoena duces tecum · depo subpoena duces tecum
Written by attorneys — see sources below.
A discovery device compelling a witness to produce specified documents or tangible items at an oral deposition. The designated materials must be identified in the deposition notice or an attachment to satisfy notice requirements to all parties.
Devon Drake noticed the deposition of a Dawson Steel project manager and served a subpoena requiring production of maintenance logs and performance spreadsheets. The notice attached the subpoena and expressly referenced its three document categories. Dawson Steel objected that the categories were omitted from the body of the notice itself. The court denied the motion to quash because the attachment satisfied the listing requirement.
Federal prosecutors served a subpoena duces tecum on the White House requiring production of tape recordings for use at a criminal trial. The subpoena directed pretrial delivery so counsel could inspect the materials. The President moved to quash on privilege grounds. The court enforced the subpoena after balancing the need for evidence against the asserted privilege.
On March 1, 1974, a grand jury returned an indictment charging seven named individuals with offenses including conspiracy to defraud the United States and to obstruct justice. Although not designated in the indictment, the grand jury named President Richard M. Nixon as an unindicted co-conspirator. On April 18, 1974, upon motion of the Special Prosecutor, a subpoena duces tecum was issued to the President requiring production of tapes, memoranda, papers, transcripts, or other writings relating to precisely identified meetings between the President and others. The President publicly released edited transcripts of 43 conversations on April 30, 1974, including 20 subject to the subpoena. On May 1, 1974, the President's counsel filed a motion to quash the subpoena under Rule 17(c) along with a claim of privilege. At a subsequent hearing, further motions to expunge the grand jury's action naming the President as an unindicted co-conspirator and for protective orders were filed by counsel for the President. On May 20, 1974, the District Court denied the motion to quash and ordered production of the materials by May 31, 1974. The court rejected claims that the dispute was a nonjusticiable intra-executive conflict and that the Judiciary lacked authority to review executive privilege. On May 24, 1974, the President appealed to the Court of Appeals, and the Special Prosecutor petitioned for certiorari before judgment, which was granted. The case was set for argument on July 8, 1974. The proceeding is a pending federal criminal prosecution in United States v. Mitchell et al. set for trial on September 9, 1974.
View caseShareholders noticed the deposition of a corporation's former attorney and served a subpoena duces tecum for documents relating to stock issuance advice. The attorney refused to answer questions about privileged communications. The court addressed whether the corporation could assert privilege against its own shareholders in the derivative action.
Stockholders of First American Life Insurance Company of Alabama brought, in the Northern District of Alabama, a class action against the company and its directors, officers, and controlling persons. They alleged violations of the Securities Act of 1933, the Securities Exchange Act of 1934, SEC Rule 10(b)(5), the Investment Company Act of 1940, the Alabama Securities Act and common law fraud, seeking to recover the purchase price which they and others similarly situated paid for their stock in FAL. They also asserted a derivative action claiming that FAL was itself damaged by alleged fraud in the purchase and sale of securities. FAL filed a cross-claim against all other defendants, asserting in its own behalf the rights the plaintiff shareholders had claimed in the derivative aspect of their complaint. R. Richard Schweitzer served as attorney for the corporation in connection with the issuance of the FAL stock here involved. After the transactions sued upon were complete he became its president. On deposition Schweitzer was asked numerous questions concerning advice given by him to the corporation about various aspects of the issuance and sale of the stock and related matters. Other questions went into the content of discussions at meetings attended by him and company officials and information furnished to him by the corporation. All questions related to times at which Schweitzer acted solely as attorney, before he became an officer of the company and before the filing of suit. The plaintiffs had served a subpoena duces tecum on Schweitzer to bring various documents to the taking of his deposition. Both he and the corporation claimed the privilege with respect to some of the documents. The District Court treated the subpoena as though it were a motion to produce under Rule 34. The District Judge held that the privilege is not available to the corporation as against these plaintiff stockholders. Contemporaneously the District Judge ordered the case transferred to the Southern District of Alabama under 28 U.S.C. § 1404(a). With respect to both orders he entered appropriate findings pursuant to 28 U.S.C. § 1292(b), the interlocutory appeal statute. This court granted applications to allow both interlocutory appeals — the plaintiffs from the transfer order, docketed as No. 26168, and the defendants from the order denying the claim of privilege, docketed as No. 26266 — but provided that ultimate disposition of the appropriateness of interlocutory appeal would be taken with the case on the merits. Also the plaintiffs filed with this court a petition for a writ of mandamus directing the District Judge to retain jurisdiction of the case in the Northern District. The court has concluded that the consolidation of the two interlocutory appeals should be vacated. In this opinion we decide No. 26266, the interlocutory appeal of FAL on the privilege issue.
View caseFederal agents executed a warrant and seized business records from a defendant's office. The defendant moved to suppress the documents on Fourth Amendment grounds. The court considered whether the seizure of papers pursuant to a subpoena-like process violated constitutional protections against unreasonable searches.
In December 1911 a federal indictment containing nine counts was returned against the defendant in the District Court of the United States for the Western District of Missouri. The seventh count charged use of the mails to transport lottery coupons or tickets in violation of section 213 of the Criminal Code. The defendant was arrested without a warrant by a police officer at the Union Station in Kansas City, Missouri, where he was employed by an express company. On the same day other police officers went to the defendant's home at 1834 Penn Street, obtained the key from a neighbor, entered the house, searched the defendant's room, and seized papers and articles that were later turned over to the United States Marshal. Later the same day the Marshal, accompanied by police officers, returned to the house, was admitted by a boarder, searched the defendant's room, and removed letters and envelopes from a chiffonier drawer. Neither the police officers nor the Marshal possessed a search warrant. Before trial the defendant filed a verified petition seeking return of the seized property, asserting that the seizure violated the Fourth and Fifth Amendments. The district court ordered return of property it deemed not pertinent to the charge but retained the remainder, which the government stated would be used in evidence. After the jury was sworn the defendant renewed the petition, which the court again denied. At trial the defendant objected to introduction of the retained papers on Fourth and Fifth Amendment grounds, the objection was overruled, and the papers—including lottery tickets seized by the police and letters seized by the Marshal—were admitted into evidence. The defendant was convicted on the seventh count and sentenced to fine and imprisonment. He then prosecuted a writ of error to the Supreme Court of the United States, assigning as error the refusal to return the property and the admission of the seized papers at trial.
View caseProsecutors issued a subpoena duces tecum to a student newspaper seeking photographs and notes from a campus protest. The newspaper moved to quash, arguing the materials were protected by the First Amendment. The court balanced the government's need for evidence against the press's interest in confidentiality of sources.
Late in the day on Friday, April 9, 1971, officers of the Palo Alto Police Department and of the Santa Clara County Sheriff's Department responded to a call from the director of the Stanford University Hospital requesting the removal of a large group of demonstrators who had seized the hospital's administrative offices and occupied them since the previous afternoon. After several futile efforts to persuade the demonstrators to leave peacefully, more drastic measures were employed. The demonstrators had barricaded the doors at both ends of a hall adjacent to the administrative offices. The police chose to force their way in at the west end of the corridor. As they did so, a group of demonstrators emerged through the doors at the east end and, armed with sticks and clubs, attacked the group of nine police officers stationed there. One officer was knocked to the floor and struck repeatedly on the head. Another suffered a broken shoulder. All nine were injured. On Sunday, April 11, a special edition of the Stanford Daily, a student newspaper published at Stanford University, carried articles and photographs devoted to the hospital protest and the violent clash between demonstrators and police. The photographs carried the byline of a Daily staff member and indicated that he had been at the east end of the hospital hallway where he could have photographed the assault on the nine officers. The next day, the Santa Clara County District Attorney's Office secured a warrant from the Municipal Court for an immediate search of the Daily's offices for negatives, film, and pictures showing the events and occurrences at the hospital on the evening of April 9. The warrant issued on a finding of just, probable and reasonable cause for believing that negatives and photographs and films, evidence material and relevant to the identity of the perpetrators of felonies, to wit, Battery on a Peace Officer, and Assault with Deadly Weapon, will be located on the premises of the Daily. The warrant affidavit contained no allegation or indication that members of the Daily staff were in any way involved in unlawful acts at the hospital. The search pursuant to the warrant was conducted later that day by four police officers and took place in the presence of some members of the Daily staff. The Daily's photographic laboratories, filing cabinets, desks, and wastepaper baskets were searched. Locked drawers and rooms were not opened. The search revealed only the photographs that had already been published on April 11, and no materials were removed from the Daily's office. A month later the Daily and various members of its staff, respondents here, brought a civil action in the United States District Court for the Northern District of California seeking declaratory and injunctive relief under 42 U.S.C. § 1983 against the police officers who conducted the search, the chief of police, the district attorney and one of his deputies, and the judge who had issued the warrant. The District Court denied the request for an injunction but, on respondents' motion for summary judgment, granted declaratory relief. The Court of Appeals affirmed per curiam, adopting the opinion of the District Court. We issued the writs of certiorari requested by petitioners.
View caseA grand jury subpoena duces tecum sought a senator's files containing constituent correspondence and staff memoranda. The senator claimed legislative immunity protected the materials from production. The court examined the scope of immunity for documents generated in the course of official legislative duties.
In the summer of 1971, a federal grand jury sitting in the District of Massachusetts opened an investigation into possible criminal violations arising from the release and publication of a classified Defense Department study known as the Pentagon Papers. Senator Mike Gravel of Alaska, who chaired the Subcommittee on Public Buildings and Grounds of the Senate Committee on Public Works, obtained a copy of the study from one of the defendants in a pending criminal case in the Southern District of New York. On the evening of June 29, 1971, the Senator convened a meeting of his subcommittee, read extensively from the papers, and placed all forty-seven volumes into the public record. Earlier that same day Dr. Leonard S. Rodberg, a research assistant at the Institute for Policy Studies, was added to Senator Gravel's personal staff and assisted the Senator in preparing for and conducting the subcommittee hearing. Several weeks later, press reports indicated that the Senator had arranged for private publication of the papers by Beacon Press and that members of his staff had spoken with the director of the MIT Press about the project. The grand jury issued subpoenas to Dr. Rodberg and to Howard Webber, director of the MIT Press, seeking notes, tape recordings, documents, and testimony concerning the release and publication of the papers. The District Court for the District of Massachusetts denied motions to quash the subpoenas but entered a protective order that limited the categories of questions the grand jury could ask Dr. Rodberg. The United States appealed the protective order to the Court of Appeals for the First Circuit, which modified the order in several respects while affirming the denial of the motions to quash. Senator Gravel moved to intervene in the proceedings, was granted leave to do so, and filed a cross-petition challenging portions of the Court of Appeals decision. The Supreme Court granted certiorari in both United States v. Doe and Gravel v. United States to review the rulings concerning the scope of protection afforded by the Speech or Debate Clause.
View caseYes. The governing rule requires that the materials designated for production be listed in the notice or in an attachment so every party receives clear advance notice and can object or seek protection before the deposition occurs.
Supporting sources
The notice is deficient. Courts have denied motions to compel and granted protective orders or motions to quash when the categories appear only in the subpoena and not in the notice or an attachment.
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Yes. The rules permit a subpoena duces tecum for any deponent, and the notice to a party deponent may be accompanied by a Rule 34 request, but the document categories must still be listed in the notice or attachment.
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Yes, provided the attachment supplies the specific categories with reasonable particularity. A bare reference to the subpoena without an actual list or attachment does not suffice.
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…94 S.Ct. 3162, 41 L.Ed.2d 1134. : The specific meetings and conversations are enumerated in a schedule attached to the subpoena. App. 42a-46a. : At the joint suggestion of the Special Prosecutor and counsel for the President, and with the approval of counsel for the defendants, further proceedings in the…