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Failure to provide requested documents under a Subpoena duces tecum

Malibu, CA |

If you serve notice of a deposition and request documents with a Subpoena duces tecum, what happens if the defendant does not bring the documents. Can you can inform the defendant at the deposition you are canceling and rescheduling. Is the defendant subject to any monetary damages for his failure to deliver the documents on time. What can you ask for as monetary damages.

Attorney Answers 1


This sounds like a deposition of a party. So you will not be using a subpoena duces tecum. Instead you use the deposition notice, and in that you can request the production of documents.

The better approach is probably to make a separate demand for inspection of documents and other tangible things and then take the deposition after the document production. That gives you time to review the records in advance of the deposition, and you can probably conduct a better examination with the additional preparation.

If that is not feasible for whatever reason, and you have a problem with what was produced at the deposition, I would: try to take as much of the deposition as possible, perhaps inquire as to what documents you requested exist, why they were not produced, then continue the deposition to a future date and try to have the documents produced in advance of the follow up session for the reasons mentioned above.

If that doesn't work then you are probably looking at a motion to compel. You need to meet and confer in advance to try to work it out. You can claim expenses associated with bringing the motion. If you had to cancel the deposition then maybe you can get the reporter's fee. I would not look at a discovery motion as a way to come out even or ahead on the litigation expenses. You will be better served to try to act in a reasonable and practical fashion.

Discovery motions can be tedious to bring. You'll probably want to consult with an attorney about strategy and tactics for your particular case and the best way to approach this in the context of your overall litigation goals.

This is a general response to a general question posted openly on-line. Answering this question does not create an attorney-client relationship or any obligation on the part of the attorney to take any action or respond further. There are often deadlines, time limits and procedures which must be followed to enforce legal rights. The failure to take appropriate action as provided by law may lead to the loss of rights. If you would like to hire Mr. Bradley you will need to arrange a consultation and enter into a written fee agreement with him.

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