These two court processes are almost the same. First, they are both issued by the court in connection with a pending action. Second, they both involve the production of documents or things. In fact, in some jurisdictions, subpoena duces tecum is loosely translated, to avoid non-English terms, as production of documents. Both may be availed of as modes of discovery, subpoena being allowed by the Rules of Court for depositions.
There are several differences between the two court processes. First, subpoena duces tecum is addressed to a person. That person, however, is not necessarily a party to the pending action. It could be a witness wanted for his testimony and for documents under his control. It could be a party to the case who also has documents under his control and wanted by the adverse party. Rule 27 of the Rules of Court, however, may only be issued against a party to the pending action. The rule is specific on whom the order may be issued against.
Second, subpoena duces tecum requires the person to bring in, and to bring in only, to the court the documents wanted by the other party. The bringing in of documents to the court is only incidental to his testimony in court. Rule 27, however, requires the party to produce the documents and not necessarily to bring them in. He is required, however, to permit the party wanting the production to inspect and copy the said documents. He is not required by the Rules to bring in the documents. And he is not required to testify. The aim of Rule 27, therefore, is directly to the documents.
Third, the Rules provide that to avail of Rule 27, there must be a pending action in court. The availability of subpoena duces tecum, however, is not limited for the purposes of a pending action. In fact, subpoena duces tecum may be issued by an officer authorized by law to do so in connection with an investigation. This means that even if an action has not reached the court, or still under the investigation of a body or an officer, a subpoena duces tecum may already be issued as long as the officer or body is authorized to
do so.
In connection with the third, an order pursuant to Rule 27 may only be issued by the court where the action is pending. Subpoena duces tecum, however, may be issued by courts other than where the action is pending. It may also be issued by the court where the deposition is to be taken or any Justice of the Supreme Court or the Court of Appeals.
Fifth, the scope of documents or things also varies. A person’s testimony is limited by the purpose upon which it is or will be offered. It follows then that he may only testify upon documents or things that fall under the purpose of his testimony. In Rule 27, however, the party may be required to produce documents or things that contain evidence material to any matter involved in the action. It is so wide that it may be characterized as fishing.
The effects or consequences are also different if there is failure of the person to bring in or produce documents. If the person under subpoena fails to appear without adequate cause, he may be held in contempt if court. If the failure is wilful refusal and is without just cause, he may be arrested. In Rule 29 in connection with Rule 27, should the party refuses to produce the documents, several consequences could happen with regard to his case: the contents of the documents shall be taken as established, or the party may be prohibited to introduce in evidence the documents, or the party’s case may be dismissed or the court may render judgment by default among others.
There may be a lot of differences between the two court processes. But the important thing is to remember their purpose and to remember when they may be availed of and their consequences.
