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In legal practice, two frequently used tools for gathering evidence are subpoenas for evidence (subpoena duces tecum) and depositions upon written questions. Although both are discovery methods intended to secure information from parties or non-parties, each serves distinct purposes and involves different procedural requirements.
Subpoena for Evidence (Subpoena Duces Tecum)
A subpoena for evidence, also known as a subpoena duces tecum (SDT), compels an individual or organization to produce specific documents, electronically stored information (ESI), or tangible items. This type of subpoena is primarily focused on obtaining existing documents / evidence, rather than requiring a witness’s personal testimony. Importantly, though, evidence obtained through a SDT is typically not admissible, standing alone, without a sponsoring witness to lay the proper foundation for admission at trial or in a hearing.
Key features:
- Evidence-Focused: Specifically targets the production of documents, records or evidence.
- No Direct Testimony: The recipient typically does not provide oral testimony or answer written questions to lay the appropriate foundation for admission in court.
- Scope and Compliance: Clearly specifies the materials to be produced and may include strict timelines.
- Applicable Parties: Can be directed toward both parties involved in litigation and third parties who possess relevant information.
Typical Usage:
- Collecting cellphone data / telemetry, medical records, financial statements, emails, or corporate documents relevant to litigation.
- Gathering evidence without necessitating a witness’s presence or oral examination.
Deposition Upon Written Questions
A deposition upon written questions (DWQ), on the other hand, is a structured procedure in which a witness provides testimony by responding in writing to a predetermined set of questions. Unlike a subpoena for documents, this discovery method seeks the personal knowledge and statements of an individual under oath, albeit in written form rather than orally. Evidence obtained via DWQ is advantageous because the respondent’s answers to the written deposition questions can, if asked properly, lay the appropriate foundation for admissibility of the underlying evidence in court.
Key features:
- Testimony-Focused: Gathers sworn, written answers from a witness based on specific questions.
- Structured Procedure: Questions are typically prepared and exchanged between parties in advance, allowing objections and cross-questions to be clearly outlined.
- Sworn Testimony: Responses are provided under oath, holding the witness accountable for accuracy and truthfulness. Also lays the required foundation for admissibility in court.
Typical Usage:
- Obtaining concise, written testimony from distant or unavailable witnesses.
- Clarifying factual points or verifying specific details without necessitating live, oral depositions.
- Laying the proper foundation for admission in judicial proceedings.
Summary of Differences
| Feature | Subpoena for Evidence | Deposition Upon Written Questions |
| Primary Goal | Document Production | Sworn Testimony (Written) |
| Interaction | No direct witness questioning | Structured written questioning |
| Witness Swearing-In Required | Typically No | Yes |
| Types of Information Gathered | Documents, ESI, tangible objects | Personal knowledge, factual testimony |
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