Can I file a subpoena duces tecum with a civil case number if I don’t have a hearing?

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Can I file a subpoena duces tecum with a civil case number if I don’t have a hearing?

I have an ex-wife who keeps violating an restraining order I have on her. I have filed an order to show cause but I am having trouble getting a hearing since I don’t have all the evidence. I need to subpoena a surveillance tape and some cell phone records. I have an active case number for this in the civil court for everything I have filed but since I can’t seem to get a hearing, how do I subpoena the evidence I need to prove she is doing these things? Do I even need a hearing or can I just use the case number?

Asked on November 3, 2010 under Personal Injury, Florida

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The rules for subpoena's varies from state to state.  In some states Attorney's can issue them.  In others certain records must be "so ordered" by a Judge.  Active cases are a must and some states require that you have a hearing date scheduled.  Generally speaking lay people - that would be you - can not issue subpoenas.  If you need records then you need to go to the courthouse and speak with the clerk of the court about how to have one issued in your matter.  Clerks of the court can issue them and I believe that there is even a form calleda subpoena duces tecum without deposition for issue by clerk.  Good luck.


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