Expert Witnesses and Subpoena Duces Tecum

Christine Funk

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— Updated on August 26, 2020

Expert Witnesses and Subpoena Duces Tecum

A subpoena duces tecum is a subpoena for tangible objects.  This may cover records, notes, a document tracking hours, or an actual item of potential evidence, such as a defective electric knife.  Unlike a subpoena ad testificandum, which demands one appear and provide testimony, a subpoena duces tecum demands one appear and provide something physical.

When a Subpoena Duces Tecum Might Be Used

In civil litigation, and in criminal litigation in states where depositions are permitted, a subpoena duces tecum may be served on an expert witness along with a subpoena ad testificandum when a deposition is scheduled.  This requires the expert to not only appear, but to bring along (or, depending on the jurisdiction, deliver beforehand) the requested documents.

In some states, discovery is accomplished by simply asking for the documents sought in writing.  In other cases, a defense attorney must file a subpoena duces tecum in order to obtain an expert’s file.

Disclosing Data Requested

Rule 45 of the Federal Rules of Civil Procedure governs the duties one has when providing documents or electronically stored information.  Documents must be produced as they are kept during the ordinary course of business.  They should be organized and labeled to correspond to the categories listed in the subpoena.  Information stored electronically must be produced in the form it is ordinarily maintained, or in a reasonably usable form.

An expert may not intentionally present requested documents in a state of disarray in an attempt to confuse the attorney for the other side.  Experts may not deliberately withhold evidence requested under a subpoena duces tecum without comment.  If certain evidence requested is withheld, (see below) this must still be acknowledged, with the other party being informed of the failure to disclose.

A subpoena is a legally enforceable demand for documents or testimony. Documents may not be held from disclosure simply because they contain evidence that is not favorable to their side.  Experts are cautioned against discussions designed to avoid turning something over, as  failure to comply with a subpoena could result in civil or criminal consequences to the expert.

Data That Does Not Have to be Disclosed, Even When Requested

Certain data is exempt from a subpoena duces tecum.  For example, electronically stored information that is not reasonably accessible due to cost or other undue burden does not have to be disclosed.  However, the person who issued the subpoena duces tecum may well make a motion to compel discovery or for a protective order to address concerns about data privacy or confidentiality.  In that case, the court will consider the motion.  The person refusing disclosure has the burden of establishing excessive cost or undue burden.

Privileged information may also be withheld, however, there are requirements in Rule 45 about the circumstances under which one can decline to provide privileged information.  An expert should not make their own determination of what is and is not privileged information.  Rather, the expert should consult with the attorney who hired them to discuss whether or not something falls under the cloak of privilege.  This is particularly important in criminal cases.  Prosecutors have a duty to disclose evidence that is exculpatory, goes towards negating a defendant’s guilt, or that might reduce a defendant’s potential sentence under Brady v. Maryland, 373 US 83 (1963), and are ethically bound by this rule.  Consequently, when working on behalf of the prosecution, experts should ensure the prosecutor is aware of evidence requested and make the final determination about what is discoverable.

A word of caution, however: experts have their own reputations to uphold as well.  If a prosecutor determines no disclosure is necessary, but the expert is concerned about the prosecutor’s interpretation of Brady, the expert should consider hiring their own counsel.  Both civil and criminal penalties are possible for failing to comply with a legally supportable subpoena.

Common Requests in a Subpoena Duces Tecum

Of course, no two cases are alike, and no particular demand can be anticipated across every case.  However, some data has become routine because it is so commonly demanded.  The following is a list of commonly requested items in a subpoena duces tecum:

  1. The complete expert file
  2. Copies of all reports written by the expert, prepared by the expert, or prepared at the expert’s direction
  3. Case notes
  4. Communications with anyone about the case, whether documented in a note, email, or a phone call summarized
  5. All information upon which the expert bases their conclusions, including all facts or data provided by the party’s attorney that the expert considered in forming opinions
  6. Other assumptions provided by the party’s attorney that the expert considered and relied upon when forming opinions
  7. A copy of the expert’s CV, professional memberships, licenses
  8. Copies of the expert’s publications
  9. Scientific articles upon which you relied in making conclusions about the case
  10. Scientific texts, treatises, technical articles or other professional publications which were relied on when forming an opinion, or to which testimony may relate
  11. The expert’s retainer, fee agreement, or contract
  12. Complete time and billing records for this file

Payment for Compliance with the Subpoena Duces Tecum

Rule 45 also provides for payment for an expert’s time which is spent responding to discovery.  The rule calls for payment of a “reasonable fee,” however, this fee is not defined in the law.  There is an exception to this rule when a “manifest injustice would result” if the party seeking discovery were to pay the fee.  “Manifest injustice” is similarly not defined in the statute.

If You Receive a Subpoena Duces Tecum

A subpoena duces tecum is just as powerful as a subpoena ad testificandum.  The law shows no preference between subpoenas for documents and subpoenas for testimony itself.  As such, both types of subpoenas should be viewed with a healthy level of respect.  Should an expert receive either type of subpoena, a call to the attorney they are working with is an excellent next step.

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