There are two types of subpoena forms in the United States--the subpoena ad testificandum and the subpoena duces tecum. The subpoena ad testificandum commands someone to appear at a specific location to testify. The subpoena duces tecum requires a witness to appear and bring with them specific documents, such as business or personal records.
The subpoena ad testificandum, which means "to testify under penalty," is also known as an ordinary subpoena. It most commonly orders a witness to testify at a court proceeding, such as a trial or a deposition. When preparing for trial, it is typically considered good practice to subpoena all witnesses, both willing and unwilling, to ensure that they will be available to give testimony. In some jurisdictions, subpoena forms are required to specify the penalty that may result if the recipient fails to obey the order.
When a witness receives a subpoena duces tecum, he is usually being ordered to do two things: appear at a specific place and time and bring certain documents with him for inspection. A subpoena duces tecum, which means "bring with you under penalty," is commonly used in civil matters where one party has refused to provide the other party with certain documents that were requested in discovery. Discovery is a process in which the parties are required to exchange pertinent information about the case with each other. If the court finds the request to be reasonable, it will issue a subpoena duces tecum so that this evidence will be produced.
Both subpoena forms usually contain some general information. This includes the name of the legal proceeding and the parties involved and also the name of the person being ordered to appear. If a subpoena duces tecum is being issued, it must contain a specific list of all documents that the witness is being compelled to produce. A subpoena is also required to state the time and place where the recipient must appear.
Both subpoena forms must be served, or delivered, to the person who is being commanded to appear. The method of service varies according to jurisdiction. Some courts require that a subpoena be delivered by a law enforcement officer, while others allow the subpoena to be mailed to the witness. The attorney who represents a party in a lawsuit or case is the individual who requests the subpoena. The clerk's office of the court in which the matter is filed typically issues the subpoena.
Non-compliance with either of the subpoena forms is considered contempt of court, and the party who has refused to comply may face civil or criminal penalties. If the witness believes that they have a valid reason for not complying with a subpoena, they may request a hearing. The court will then decide whether or not they will need to appear.