210.1Subpoena to Produce Documents
- Prosecutors may use a subpoena duces tecum to order a witness to produce documents or other tangible things in accordance with Rule 45, but usually only after a criminal case has commenced.
- The person responding to the subpoena must produce the requested items at the specified time and place to authenticate the documents, unless they are permitted to authenticate by an affidavit from the records custodian.
- When the state receives documents in response to the subpoena, notice of that receipt must be given to the defense within five (5) business days, and the defense must be given a “reasonable opportunity” to inspect and copy the documents.
Overview and Authorization
A subpoena duces tecum (also called a “document subpoena”) is used to compel a witness to produce papers, records or other physical objects needed at trial. G.S. 15A-802 states that the production of records, books, papers, documents, or other “tangible things” in a criminal proceeding may be obtained by a subpoena properly issued and served as provided in Rule 45 of the N.C. Rules of Civil Procedure. See also G.S. 8-61 (“Subpoenas for the production of records, books, papers, documents, or tangible things may be issued in criminal actions in the same manner as provided for civil actions in Rule 45 of the Rules of Civil Procedure.”).
Generally, a criminal proceeding must have been commenced in court before a party may issue a subpoena under G.S. 15A-802. See In re Superior Court Order Dated April 8, 1983, 70 N.C. App. 63 (1984), rev’d on other grounds, 315 N.C. 378 (1986) (noting that “subpoenas are not available by statute until an action has been commenced,” but the court has inherent authority to issue a “court order” for examination and production of bank records during the investigative stage of case); see also N.C. R. Civ. P. 45(a)(1)a. (every subpoena must state the name of the court in which the action is pending). However, there are exceptions to this rule, such as the issuance of a special subpoena (AOC-SP-630) for financial records related to the investigation of suspected exploitation of disabled persons and older adults. See G.S. 108A-116; G.S. 14-112.2. Another notable exception is the SBI’s unique authority to issue an administrative subpoena to phone companies for the production of call detail records and subscriber information prior to the commencement of any criminal proceedings. See G.S. 15A-298.
The person named in the subpoena is not being compelled to testify, but rather to produce and authenticate the specified records. If the state also needs the person to testify, the prosecutor should subpoena the person for that purpose as well. See State v. Richardson, 59 N.C. App. 558 (1982), rev’d in part on other grounds, 308 N.C. 470 (1983). A subpoena to produce evidence may be issued separately, or joined with a subpoena to appear and testify. N.C. R. Civ. P. 45(a)(2). The AOC form subpoena, AOC-G-100, may be used for both purposes - it contains boxes for the party issuing the subpoena to indicate whether the recipient is being asked to testify, produce documents, or both.
Items sought by a subpoena duces tecum must be material to the inquiry. The subpoena “must specify with as much precision as fair and feasible the particular items desired.” State v. Newell, 82 N.C. App. 707, 708 (1986). It must describe the items sought “with such definiteness that the witness can identify them without prolonged or extensive search.” Vaughan v. Broadfoot, 267 N.C. 691, 696 (1966). Discovery is not a proper purpose for a subpoena duces tecum. Parties are not entitled to have a mass of records and other documents brought into court to search through them for evidence. Id. (disapproving of “fishing or ransacking” expeditions).
District court discovery by subpoena?
Can the defendant use a subpoena to obtain records from the state in district court (such as an officer’s incident report in a DWI case), even though the defendant would otherwise have neither a common law nor a statutory right to pre-trial discovery? Some cases indicate that it’s permitted. See, e.g., State v. Love, 100 N.C. App. 226 (1990), conviction vacated on habeas grounds, Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995) (“another alternative for the production of documents not subject to the criminal discovery statute is the use of a subpoena duces tecum"); State v. Newell, 82 N.C. App. 707 (1986) (“documents not subject to the criminal discovery statute may still be subject to a subpoena duces tecum”).
If the prosecutor is opposed to such a disclosure, he or she may be able to argue that the specific statutory schemes regulating criminal discovery in North Carolina should take precedence over the more general provisions regarding subpoenas and process. See, e.g., Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644 (2000) (“The object of the subpoena duces tecum is to secure the production of evidence for presentation to the court, not to secure items for inspection. […] Thus, this subpoena is not properly used for discovery purposes.”); State v. Almond, 112 N.C. App. 137 (1993) (“we believe that the trial court was correct in characterizing the subpoenas as discovery devices intended to circumvent the normal discovery process”); see also U.S. v. Richardson, 607 F.3d 357 (4th Cir. 2010) (applying federal rules, “subpoena duces tecum cannot substitute for the limited discovery otherwise permitted in criminal cases and the hope of obtaining favorable evidence does not justify the issuance of such a subpoena”).
Who May Issue a Subpoena
Any attorney for a party (which would include a prosecutor), judge, magistrate, or the clerk of superior court for the county where the proceeding will be held may issue a subpoena to produce documents. Unlike a subpoena to compel the attendance of a witness, a subpoena compelling the production of specified documents apparently may not be issued by a party to the court action, although the attorney for the party may issue either type of subpoena. See N.C. R. Civ. P. 1A-1, N.C. R. Civ. P. 45(a), (b); G.S. 8-61; G.S. 15A-802; G.S. 7A-103.
However, a subpoena for a person to appear or produce documents may not be issued before there is a pending criminal proceeding, except in the limited situations discussed above. Therefore, a prosecutor who wants to obtain information or documents before a criminal charge has actually been brought should consider using a search warrant (assuming sufficient probable cause exists), or obtaining a court order under the authority of In re Superior Court Order, 315 N.C. 378 (1986) (note that that Chapter 53B of the General Statutes has superseded the subject matter of the ruling in this case, but the court’s ruling about a judge’s “inherent authority” to issue court orders still remains valid) and In re Albemarle Mental Health Center, 42 N.C. App. 292 (1979) (superior court judge has authority, before criminal charges are brought, to override physician-patient and psychologist-patient privilege on application of district attorney to obtain privileged information about alleged homicide). In seeking such an order, it is important to follow the procedures set forth in State v. Santifort, 257 N.C. App. 211 (2017) (emphasizing that applications must be supported by affidavits establishing reasonable suspicion and must be filed as special proceedings).
Content and Service Requirements
The required contents of a subpoena duces tecum and its manner of service are similar to those for a subpoena ad testificandum under Rule 45(a), (b). No affidavit showing materiality or necessity is required. See Vaughan, 267 N.C. 691. The admissibility of the items will be determined at trial unless the subpoena is quashed before trial (see next entry on Compliance and Objections to subpoenas). The standard AOC form subpoena, AOC-G-100, includes space for the issuing party to fill in the specific case information as well as the form language required in all cases.
1. Rule 45(a)(1) requires that every subpoena state the following:
- the title of the action;
- the name of the court in which the action is pending;
- the name of the party who is responsible for summoning the witness;
- a command to the person to whom it is directed to produce and permit inspection and copying of designated records, books, papers, documents, or tangible things in the possession, custody, or control of that person;
- the protections for recipients of subpoenas as stated in Rule 45(c); and
- the duties of recipients in responding to subpoenas as stated in Rule 45(d).
2. Under Rule 45(b)(1), a subpoena duces tecum may be served by:
- the sheriff;
- a sheriff’s deputy;
- a coroner; or
- any person who is not a party and is not less than 18 years of age.
3. Service on the party named in the subpoena duces tecum may be made by:
- personally delivering a copy of the subpoena to that person; or
- registered or certified mail, return receipt requested.
Unlike a subpoena ad testificandum, a subpoena duces tecum may not be served by telephone communication. See N.C. R. Civ. P. 45(b)(1). In civil cases, a copy of a subpoena duces tecum also must be served on other parties to the case, but G.S. 15A-802 exempts criminal cases from that requirement. The subpoenaing party in a criminal case need only serve the person or entity being subpoenaed in accordance with the above requirements.
Role of Person Producing Documents
To comply with a subpoena duces tecum, the person must produce the requested items as they are kept in the usual course of business, or else the documents must be organized and labeled to correspond with the categories stated in the request. N.C. R. Civ. P. 45(d)(1). The person named in the subpoena to produce documents must produce the documents in court at a specified time and testify to authenticate the documents, if so ordered (but see exceptions below). The subpoena must specify production of only those documents which are material to the trial. See State v. Love, 100 N.C. App. 226 (1990) (defendant issued subpoena to county mental health center requesting all files and records concerning the child sexual abuse victim without referring to specific time periods, dates, or contents—court ruled that trial judge properly quashed subpoena; although the defendant in this case later secured a new trial from the Fourth Circuit Court of Appeals on constitutional grounds, see Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995), it was not decided specifically on whether the subpoena was overbroad as a matter of state law).
Several provisions define exceptions to the general rule that the records custodian must appear to authenticate the documents:
1. Custodian of Public Records
Instead of appearing personally, a custodian of public records may send by registered mail certified copies of requested records and an affidavit authenticating the records. N.C. R. Civ. P. 45(c); see G.S. 8-45.1; G.S. 8C-1, Rule 803(8), 901(a), 901(b)(7), and 902(4).
2. Custodian of Hospital Medical Records
Instead of appearing personally, a custodian of hospital medical records may personally deliver or send to the court by registered mail certified copies of requested records and an affidavit concerning the identity and authenticity of these records, as provided in Rule 45(c) of the Rules of Civil Procedure. See G.S. 8-44.1; G.S. 8C-1, Rule 803(4); 803(6); and 901(a).
3. Custodian of Business Records
Instead of appearing personally, a records custodian may submit an affidavit or documents under seal concerning the identity and authenticity of records, reports, or data compilations in any form, made at made at or near the time by, or from information transmitted by, a person with knowledge, if (i) kept in the course of a regularly conducted business activity (the term “business” includes businesses, institutions, and associations of every kind) and (ii) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation. See G.S. 8C-1, Rule 803(6); Rule 902; G.S. 8-45.1 Authentication of evidence by affidavit shall be confined to the records of nonparties, and the proponent of that evidence shall give advance notice to all other parties of intent to offer the evidence with authentication by affidavit. Id.
The person or organization responding to the subpoena is entitled to be reasonably compensated for the costs of producing the records and complying with the subpoena, and may also be entitled to compensation for other witness-related expenses, such as travel to court to authenticate records. See N.C. R. Civ. P. 45(c)(6); G.S. 6-51 to 62; G.S. 7A-314 to 316.
Time and Place of Compliance
As mentioned above, a traditional subpoena duces tecum requires production in conjunction with a proceeding in the case to which the recipient is subpoenaed, such as a pretrial hearing, deposition, or trial. In that case, the person is ordered to both produce the documents or things, and also appear and testify as need to identify and authenticate the items.
But in criminal cases, a subpoena may also direct the recipient to produce the documents or things at a designated time and place, such as the prosecutor’s office or a police station (sometimes referred to as an “office subpoena”), even though no court hearing or other proceeding is scheduled for that time and place, and the recipient is not ordered to personally appear. See N.C. R. Civ. P. 45(a)(2) (per 2003 revisions, the command to produce the documents may be “issued separately” from a command to appear at a trial or hearing); see also North Carolina State Bar, 2008 Formal Ethics Opinion 4 (2008) (so interpreting quoted language).
Notice of Receipt
Rule 45(d1) of the N.C. Rules of Civil Procedure states that within five business days of receipt of materials produced in compliance with a subpoena duces tecum, the party who was responsible for issuing the subpoena must serve all other parties with “notice of receipt.” On request, the party receiving the material must provide all the other parties a reasonable opportunity to copy and inspect such material at the inspecting party’s expense. The General Assembly revised Rule 45 to add this notice and inspection requirements in subsection (d1) of Rule 45 in 2007, apparently in response to concerns from civil practitioners after the 2003 changes to Rule 45, which allowed a party to issue a subpoena for the production of documents without also scheduling a deposition, at which the opposing party would be present and would have an opportunity to review and obtain copies of the subpoenaed records.
G.S. 15A-802 specifically exempts document subpoenas issued in criminal cases from the requirement that a copy of the subpoena must be served upon the opposing party at the time it is issued, but G.S. 15A-802 does not address exempting criminal subpoenas from the ‘notice and inspection upon receipt’ requirements enacted in 2007. As a result, the notice provision likely obligates the state to turn over information or records obtained by a document subpoena which it otherwise might not be required to produce pursuant to the normal discovery obligations in G.S. 15A-903 and 15A-904 (for example, bank or medical records regarding a third party that turned out to be irrelevant to the case). But if making such a disclosure would force the prosecutor to turn over confidential or sensitive information, he or she should consider seeking a protective order under G.S. 15A-908. Alternatively, instead of using a subpoena, the state could just obtain the documents through a court order for production of records, which would not be governed by the same disclosure provisions of Rule 45.