Subpoena Duces Tecum in Texas

What Is a Subpoena Duces Tecum?

Background

Texas Rule of Civil Procedure 205.1 authorizes a party to compel discovery from a nonparty by serving a subpoena compelling a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions. (In re United Fire Lloyds (2019) 578 S.W.3d 572, 578 citing Tex. R. Civ. P. 205.1(c).)

Tex. R. Civ. P. 176(c) concerns the production of documents or tangible things and provides: A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.

Non-Party Documents and Testimony

“[O]ne need not sue a third party to obtain discovery from it. She can issue process—subpoenas—requiring a third party to produce both witnesses and documents relevant to a pending civil case.” (See, e.g., Tex. R. Civ. P. 176. Cluck v. Metrocare SVCS-Austin, L.P. (2019) A-16-CV-1216-RP, at *4-5.)

How to Structure the Motion

Every subpoena must be issued in the name of "The State of Texas" and must (among other things):

state the style of the suit and its cause number;
state the court in which the suit is pending;
state the date on which the subpoena is issued;
identify the person to whom the subpoena is directed;
state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;
state the text of Rule 176.8(a); and
be signed by the person issuing the subpoena.

(Tex. R. Civ. P. 176)

Priviledged Material and The Snap-Back Provision

The snap-back provision was designed to protect the inadvertent disclosure of privileged material in order to reduce the cost and risk involved in document production. (In re Christus Spohn Hosp. Kleberg (2007) 222 S.W.3d 434, 438 citing Tex. R. Civ. P. 193 cmt. 4.) The snap-back provision states that:

A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if — within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made — the producing party amends the response, identifying the material or information produced and stating the privilege asserted. (Tex. R. Civ. P. 193.3(d).)

The rule is focused on the intent to waive the privilege, not the intent to produce the material or information. (Id. at cmt. 4.)

“The snap-back provision has typically been applied when a party inadvertently produces privileged documents to an opposing party.” (In re Christus Spohn Hosp. Kleberg, supra, citing Warrantech Corp. v. Computer Adapters Servs. (2004) 134 S.W.3d 516, 525 [holding that inadvertent production of privileged letter to opposing counsel did not waive the privilege under Rule 193.3(d)]; In re AEP Tex. Cent. Co. (2003) 128 S.W.3d 687, 693-94 [holding that privileged legal memorandum inadvertently produced to the opposing side must be returned under the snap-back provision.])

The Court’s Decision

Generally, a party may obtain discovery regarding any unprivileged matter that is relevant to the subject matter of the pending action, even if it would be inadmissible at trial, so long as the information sought is “reasonably calculated to lead to the discovery of admissible evidence.” (Tex. R. Civ. P. 192.3(a) ; In re CSX Corp. (2003) 124 S.W.3d 149, 152.) The scope of discovery is broad, but “requests must show a reasonable expectation of obtaining information that will aid the dispute's resolution.” (CSX Corp., supra, 124 S.W.3d at 152.)

“[R]equests must be ‘reasonably tailored’ to include only relevant matters." (In re United Fire Lloyds (2019) 578 S.W.3d 572, 578 citing, id.) “Discovery may not be used as a fishing expedition or to impose unreasonable expenses on the opposing party.” (In re Alford Chevrolet-Geo (1999) 97 S.W.2d 173, 181.)

Documents for Subpoena Duces Tecum in Texas

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TAMARA LA SALLE ALLEN vs. CHRIS FERNANDEZ document preview

ISSUE SUBPOENA-NAVY FEDERAL CREDIT UNION - ISSUE SUBPOENA

2 pages

Mid“ Of Inwiliiy To Pay FORM 316 SUBPOENA DUCES TECUM (CIVIL) CAUSE NO. DC-23—20549 CERTIFIED MAIL STYLE TENDER FEES NOT PAID TAMARA LA SALLE ALLEN V_S- CHRIS FERNANDEZ THE STATE OF TEXAS T…