Section 4.15 Production by Nonparty Deponents

• Library: Discovery 2015

Under Rule 57.03(b)(1), a subpoena duces tecum will be used to compel a nonparty deponent to produce documents at depositions. It is not necessary to obtain prior court approval for the issuance of a subpoena duces tecum, and the subpoena may be issued by the clerk of the court in which the action is pending or by an officer authorized to take the deposition.

A subpoena duces tecum cannot require production of documents that are beyond the scope of discovery under Rule 56.01 and that could not be required in accordance with a request for production. State ex rel. State Farm Mut. Auto. Ins. Co. v. Keet, 601 S.W.2d 669 (Mo. App. S.D. 1980). The same prohibitions against vague or overly broad document requests would apply to subpoenas duces tecum.

The permissible scope of a subpoena duces tecum is determined by Rule 56.01 and by reference to the petition. State ex rel. Crowden v. Dandurand, 970 S.W.2d 340 (Mo. banc 1998). For instance, a subpoena duces tecum may not be employed to obtain privileged medical records from a party’s health insurance carrier when the privilege has not been waived. SeeState ex rel. Gozenbach v. Eberwein, 655 S.W.2d 794 (Mo...