How to Subpoena Documents

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You may decide you need to subpoena documents for your case. This is rarely done in small claims court, but there are times when it may be helpful. An organization (such as a police department, phone company, hospital, or corporation) may have certain books, ledgers, papers, or other documents that can help your case. Unless the organization volunteers to bring the documents to court for you (which is rare), you'll need to prepare a court order, called a "subpoena duces tecum," that directs the person in the organization who is in charge of the records to send them directly to the court. This subpoena is very similar to the standard subpoena form, except for the added space where you describe the papers or other documents you want. Keep in mind that successfully bringing documents before the court does not guarantee that the judge will admit them into evidence. The judge must be convinced that the records are relevant to your case.

To get a subpoena duces tecum issued, you normally follow a procedure along the following lines: Attach to the completed subpoena form an affidavit stating "under penalty of perjury" why you need the written material. Prepare three copies of all papers and, after you get the clerk to issue the subpoena, serve it on the witness using personal service. As with a regular subpoena, the witness is entitled to ask for a fee. The Proof of Service is on the back of the subpoena form; it must be filled out and returned to the clerk.

Rules for subpoenas vary from state to state. Technical rules on filing and serving papers, as well as paying witness fees, vary considerably from one state to the next. Make sure you know what will be required. Also, before subpoenaing documents, be sure to ask whether the other side will simply give you photocopies in advance.

A subpoena duces tecum must be directed to the person who is in charge of the documents, books, or records you want produced in court. It may take a few phone calls to find out who this is. Be sure you get this information accurately. If you list someone on the subpoena duces tecum who has nothing to do with the documents, you won't get them. When dealing with a large corporation, public utility, or municipal government, it is wise to list the person who is in overall charge of the department where the records are kept. Thus, if you want records having to do with library fines from a public library, or having to do with business license fees from the city tax and license department, you should not list the city manager or the mayor, but should list the head librarian or the director of the tax and license office.

EXAMPLE: You are being sued by the city on behalf of the public library for $800 for eight rare books that they state you failed to return. You know you did return the books but can't seem to get that across to the library, which insists on treating you like a thief. You learn that each April the library takes a yearly inventory of all books on their shelves. You believe that if you can get access to that inventory, you may be able to figure out where the library misplaced the books, or at least show that a significant percentage of the library's other books are not accounted for, raising the implication that they, not you, lost the books.

Your first step is to ask the library to voluntarily open the inventory to you. If they refuse, you may well want to subpoena it. Here's how:

  • 1. Complete the subpoena form.
  • 2. Prepare a declaration under penalty of perjury. Briefly describe the documents you need and why they are necessary to prove issues involved in the case. If you want the custodian of the records to show up in person, give a reason. Don't argue the merits of your case.
  • 3. Have a subpoena issued by the small claims clerk. Then deliver the subpoena to the head librarian, and don't forget to properly fill out the proof of service and return it to the clerk.

Ask to examine documents prior to your court hearing. The documents you have subpoenaed will be mailed or presented to the court–not to you. You will probably want an opportunity to examine them and should request that from the judge, who may well let you look at them right there in the courtroom while other cases go ahead. Or, if necessary, the judge may postpone the case for a few days and arrange to have you examine the documents at the place of business where the records are normally kept.

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