Subpoena Duces Tecum - Writ of Mandamus

Writ of Mandamus

The writ of mandamus is appropriate to compel surrender of documents in the possession of attorneys or other persons that have been illegally obtained under the abuse of a writ of attachment. Mandamus can vacate an order to produce books and papers. However, mandamus is not the proper remedy to quash a motion to compel a district attorney to relinquish books and records to his successor office holder.

In a 1893 case, the United States Attorney in Alabama refused to vacate his office, refusing to surrender books, papers and other materials in the position of that office to the newly appointed U.S. Attorney. The federal court in Alabama issued a writ directing the previous attorney to relinquish the documents. He, in turn, sought relief from the Supreme Court, which denied his application, saying it would not interfere with the properly conducted internal matters of a court. In the case In re: Parson, the United States Supreme Court wrote: "If the orders be regarded merely as directions in the administration of judicial affairs in respect of the immediate possession of property or custody of prisoners, we cannot be properly called to, by reason of anything appearing on these records, in the exercise of appellate jurisdiction in this manner, to direct them to be set aside. And if the proceedings should be treated as involving a final determination as on issues joined to the right to such possession and custody, there was no complaint of want of notice or of hearing, and the summary made adopted did not in itself affect the jurisdiction of the Circuit Court upon the ground that it had exceeded its powers."

Mandamus is the remedy where a lower court has clearly failed to issue compulsion to produce documents, or to allow the petitioner access to such documents as may be in the possession of the court or the parties to the action. Mandamus can be used to compel a court to enforce an order to answer interrogatories (questions submitted by the court or one of the parties to be answered under oath and pain of perjury).

Mandamus is the proper remedy to compel the quashal of a subpoena duces tecum for the production before a grand jury of attorney–client privilege. Presumably, this would apply to attorney work product, although there is no case law on the matter.