The Colorado Supreme Court recently clarified the requirements and proper procedure for the issuance of subpoenas under Rule 45 of the Colorado Rules of Civil Procedure in In re Marriage of Wiggins, 2012 CO 44. A party to a lawsuit may invoke the subpoena power of the court to require the attendance of a witness at a deposition, hearing or trial, and to acquire documents from that witness. A subpoena ordering a witness to produce documents is called a subpoena duces tecum, which is a Latin phrase meaning “bring with you under penalty of punishment.”
In Wiggins, the attorney for a husband involved in a divorce obtained sensitive documents from the wife’s former employer via a subpoena duces tecum without advance notice to the wife. Because the wife and her attorney were not provided notice, they could not object to the production of sensitive and potentially confidential documents. The court in Wiggins analyzed whether a witness may produce documents in advance of the time and place specified in a subpoena duces tecum.
Many attorneys erroneously believe that they can serve a subpoena duces tecum on a witness and obtain documents before ever notifying the other party. This common practice is especially problematic in family law cases where parties can potentially inquire into topics ranging from the adverse party’s mental and physical health or income and assets. As a result, the American Academy of Matrimonial Lawyers (“AAML”) filed an amicus curie brief in Wiggins arguing that Rule 45 prohibited a party from obtaining documents in lieu of a witness appearing at a deposition, hearing or trial except upon agreement of all interested parties. The Colorado Supreme Court agreed with the AAML and unequivocally held that documents are to be produced only at a deposition, hearing or trial specified in a subpoena duces tecum unless the subpoenaed witness and all interested parties agree to alternate arrangement.