Section 9.12 Gathering Documents With Rule 58.02 and the Subpoena

• Library: Sources of Proof (2014 Ed.)

4. (§9.12) Gathering Documents With Rule 58.02 and the Subpoena Duces Tecum

Depositions and documents intersect in two main ways:

1. Depositions taken to ask questions about documents

2. Depositions taken to obtain documents

As to the first, counsel may wish to conduct discovery concerning the existence, identity, and authenticity of documents. This can be done either in conjunction with other discovery devices, such as interrogatories or requests to produce, or solely through the use of a deposition. The particular nature of the case and the use of the evidence dictate how counsel chooses to proceed. The scope of inquiry under Rule 56.01 concerning documents includes not only their existence, description, nature, custody, and location, but also the method and purpose of their preparation.

Depositions used to gather documents from nonparties were traditionally done by issuance of a deposition notice along with a subpoena duces tecum. Documents from other parties can be obtained through the use of Requests for Production of Documents in accordance with Rule 58.01. There is nothing prohibiting use of the subpoena duces tecum with a party, and they can be used when counsel does not have time to wait the usual 30 days to get a response to a request for production, but service must be properly made and notice properly given. See Rules 57.03 and 58.01.

In 2011, the Supreme Court re-wrote Rule 57.09 and issued new Rule 58.02; these Rules now codify and streamline, somewhat, the process of obtaining documents from nonparties. This may have been in connection with concerns about the improper use of the subpoena duces...