The Power of the Subpoena Duces Tecum

In family law cases, obtaining information and documentation from the opposing party through the discovery process may help to advance your position in negotiations and litigation. However, oftentimes the opposing party is not the only entity that has materials to assist in this endeavor. Obtaining documentation from a third party is often helpful and may be essential. In this case, how would you obtain materials that are allegedly not in the custody or control of the opposing party? This is where a subpoena duces tecum comes into play. 

What is a Subpoena Duces Tecum?

A subpoena duces tecum, from the Latin meaning “you shall bring with you,” is a powerful discovery tool. In civil cases, it is issued in accordance with Virginia Code § 16.1-89 and Virginia Supreme Court Rule 4:9A. If a case is active, the court or a clerk may issue a subpoena duces tecum, but so can an individual or an attorney. If one is issued, it demands that the receiving entity produce the items being requested by a specific date. These items may include documents, records, reports, videos, social media posts, and even e-mails and text messages.

If I’m Not a Party to the Case, Why Would the Parties Want Information From Me?

In a family law context, the issuing party is likely seeking information that they believe is relevant to the issues at hand, such as the motive of a party to seek a change in custody or visitation, further corroboration of facts related to fault-based grounds for divorce, conversations regarding income received “under the table,” and even attempts to conspire with another to hide marital assets. The reasons can be endless.

Can I Fight a Subpoena Duces Tecum?

It is not unreasonable to believe that it is an invasion of privacy to be directed to produce information, especially videos, text messages, e-mails, direct messages, and other communications that you consider private. A natural question that follows is whether there is something you can do to fight the subpoena duces tecum if you do not want to produce the items being requested. The answer is maybe.

Questions such as whether the subpoena duces tecum was drafted and served properly and whether there are legal objections that can be made, including whether such information sought is protected by a legal privilege, should be considered when determining if a subpoena duces tecum can be fought or should be fought. If it’s determined that the subpoena duces tecum should be fought, then the receiving party may file a timely “Motion to Quash,” which may be met with a “Motion to Compel.” If the receiving party and the issuing party cannot resolve the issue outside of court, it may be placed in front of a judge who will ultimately decide the validity and scope of the subpoena duces tecum.

What Should I Do if I Receive a Subpoena Duces Tecum?

If you receive a subpoena duces tecum related to a family law matter, you should not attempt to navigate these issues alone, whether you believe it’s an invasion of privacy or not. Providing documents, videos, or communications to the issuing party can have ramifications not readily identifiable without the assistance of a trained family lawyer.

Livesay & Myers, P.C. has a team of experienced family lawyers across five office locations in Northern Virginia, who can assist you in determining your rights and how to respond to a subpoena duces tecum. Contact us to schedule a consultation today.