While it won't often happen in small claims court, you might need a court order commanding someone to appear in court and testify (a "subpoena") or to appear in court and produce documents (a "subpoena duces tecum"). You'll need to follow the court's procedures to get the order you need, but those procedures typically involve these steps:
After briefly explaining what a subpoena is and why you might need one, we'll expand on each of these steps.
Suppose your car was vandalized in a hotel parking lot. You want the hotel to pay for the property damage. You learn that a convenience store security camera across the street recorded the incident, but the store manager refuses to give you a copy of the video. How can you get the security footage?
The answer is: With a subpoena duces tecum. You might see this called a "records subpoena" or a "document subpoena." Regardless of the name, in our example it's a court order directed to the person who's the "custodian" of the convenience store's security camera recordings, requiring that they produce the footage you want. The custodian is probably the store manager, or maybe the owner.
Let's continue with our car vandalism example. You find out that a witness who saw your car being vandalized reported it to the hotel manager. You don't need that witness to produce any documents, but you want them to testify in court. If the witness refuses to appear voluntarily, you can subpoena them to show up in court and explain what they saw.
You'll want to do some homework before you get a records subpoena. Here are the things you should do.
Before going through the hassle of getting and serving a subpoena, see if you can get what you need voluntarily.
In our car vandalism example, you might talk to the convenience store manager and ask for a copy of the video. If they're reluctant, let them know—not in a threatening way but politely—that you're hoping they'll give you what you need so you won't have to waste their time by forcing them to appear in court. Once they understand that they can do things the easy way or the hard way, most will choose the path of least resistance.
Check your state or local small claims court website to see if you can find self-help forms and information. If you can find a court-approved subpoena form that fits your case, use it. For example, California has a link to Form SC-107, Small Claims Subpoena, along with an information page explaining the subpoena process. Nevada has a similar page, complete with several different subpoena forms.
If you don't find what you need online, call the court clerk's office and ask about local procedures and forms. The time you invest in preparation will save you (and others) a great deal of effort and inconvenience later in the case.
To get a subpoena duces tecum, you'll first have to figure out who has custody and control of the records you need. Naming the right person is critical. Name the wrong person and you won't get the records you're after. Worse still, you'll have to repeat the process, likely delaying your case by weeks or months.
Large companies often have one or more designated "records custodians"—people whose job it is to collect and maintain records and to respond to requests like yours. Once you know who that person is (check online or call), naming them in your subpoena is straightforward.
Smaller companies might prove to be more of a challenge. Chances are they've never heard of a records custodian, so you'll have to explain that you need the person who's in charge of whatever documents or information you want. Be patient. And as you work through the identification process, try to convince the people you speak with to voluntarily give you what you're after. You might be able to avoid a subpoena altogether.
Whether you want a subpoena or a subpoena duces tecum, the steps you need to follow will mostly be the same. There's a bit more involved to get a subpoena duces tecum, but we'll cover that below.
Keep in mind that the steps we outline here are generic, meant to describe a typical subpoena process. It's up to you to find out about your local practices. Every court has its own slight variations, and getting it right is essential.
Once you've had your subpoena served, the third party either must comply—show up in court and testify or produce the records in their possession that you've asked for—or object to your subpoena and ask the court to "quash" it (cancel it, in whole or in part). If they ask to have it quashed, it's up to the judge to decide whether, and to what extent, they must respond. The other side can object, too, though that's not likely in small claims court.
If you have questions about the process, it might be worth buying an hour of attorney time to get professional advice. Without the necessary information, proving your case and getting the recovery you want could prove elusive.