§ 12-2004.1. Subpoena.

SUBPOENA

A.  SUBPOENA; FORM; ISSUANCE.

1.  Every subpoena shall:

a.state the name of the court from which it is issued and the title of the action, and

b.command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing or sampling of designated books, documents, electronically stored information or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified.  A subpoena may specify the form or forms in which electronically stored information is to be produced.

2.  A subpoena shall issue from the court where the action is pending, and it may be served at any place within the state.

a.Deposition in Action Pending Outside of This State.

If the action is pending outside of this state, the district court for the county in which the deposition is to be taken shall issue the subpoena and, upon application, any other order or process that may be appropriate in aid of discovery in that action.  Proof of service of a notice to take deposition constitutes a sufficient authorization for the issuance of subpoenas for the persons named or described therein,

b.Subpoena for Production or Inspection in Action Pending Outside of This State.

If the action is pending outside of this state, the district court for the county in which the production or inspection is to be made shall issue a subpoena for production or inspection as provided in subparagraph b of paragraph 1 of subsection A of this section, if separate from a subpoena commanding the attendance of a person, and upon application, any other order or process that may be appropriate in aid of discovery in that action.  Proof of service of a notice of request for production of documents without a deposition constitutes a sufficient authorization for the issuance of a subpoena for production or inspection, and

c.Judicial Assistance or Review Available.

Any person seeking an order or process in aid of discovery or any person aggrieved by the issuance or enforcement of a subpoena issued in aid of discovery for an action pending outside of this state may obtain judicial assistance or review upon the filing of a civil action and payment of required fees.

3.  A witness shall be obligated upon service of a subpoena to attend a trial or hearing at any place within the state and to attend a deposition or produce or allow inspection of documents at a location that is authorized by subsection B of Section 3230 of this title.

4.  The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.  As an officer of the court, an attorney authorized to practice law in this state may also issue and sign a subpoena on behalf of a court of this state.

5.  Leave of court for issuance of a subpoena for the production of documentary evidence shall be required if the plaintiff seeks to serve a subpoena for the production of documentary evidence on any person who is not a party prior to the expiration of thirty (30) days after service of the summons and petition upon any defendant.

6.  Notwithstanding any other provision of law, a court clerk of this state shall not be subject to a subpoena in matters relating to court records unless the court makes a specific finding that the appearance and testimony of the court clerk are both material and necessary because of a written objection to the introduction of the court records made by a party prior to trial.

B.  1.  SERVICE.  Service of a subpoena upon a person named therein shall be made by delivering or mailing a copy thereof to such person and, if the person's attendance is demanded, by tendering to that person the fees for one (1) day's attendance and the mileage allowed by law.  Service of a subpoena may be accomplished by any person who is eighteen (18) years of age or older.  A copy of any subpoena that commands production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by subsection B of Section 2005 of this title.  If the subpoena commands production of documents and things or inspection of premises from a nonparty before trial but does not require attendance of a witness, the subpoena shall specify a date for the production or inspection that is at least seven (7) days after the date that the subpoena and copies of the subpoena are served on the witness and all parties, and the subpoena shall include the following language:  "In order to allow objections to the production of documents and things to be filed, you should not produce them until the date specified in this subpoena, and if an objection is filed, until the court rules on the objection."

2.  Service of a subpoena by mail may be accomplished by mailing a copy thereof by certified mail with return receipt requested and delivery restricted to the person named in the subpoena.  The person serving the subpoena shall make proof of service thereof to the court promptly and, in any event, before the witness is required to testify at the hearing or trial.  If service is made by a person other than a sheriff or deputy sheriff, such person shall make affidavit thereof.  If service is by mail, the person serving the subpoena shall show in the proof of service the date and place of mailing and attach a copy of the return receipt showing that the mailing was accepted.  Failure to make proof of service does not affect the validity of the service, but service of a subpoena by mail shall not be effective if the mailing was not accepted by the person named in the subpoena.  Costs of service shall be allowed whether service is made by the sheriff, the sheriff’s deputy, or any other person.  When the subpoena is issued on behalf of a state department, board, commission, or legislative committee, fees and mileage shall be paid to the witness at the conclusion of the testimony out of funds appropriated to the state department, board, commission, or legislative committee.

C.  PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.

1.  A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.  The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney, or both, in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney fee.

2.a.A person commanded to produce and permit inspection, copying, testing or sampling of designated books, papers, documents, electronically stored information or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

b.Subject to paragraph 2 of subsection D of this section, a person commanded to produce and permit inspection, copying, testing or sampling or any party may, within fourteen (14) days after service of the subpoena or before the time specified for compliance if such time is less than fourteen (14) days after service, serve written objection to inspection, copying, testing or sampling of any or all of the designated materials or of the premises, or to producing electronically stored information in the form or forms requested.  An objection that all or a portion of the requested material will or should be withheld on a claim that it is privileged or subject to protection as trial preparation materials shall be made within this time period and in accordance with subsection D of this section.  If the objection is made by the witness, the witness shall serve the objection on all parties; if objection is made by a party, the party shall serve the objection on the witness and all other parties.  If objection is made, the party serving the subpoena shall not be entitled to inspect, copy, test or sample the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued.  For failure to object in a timely fashion, the court may assess reasonable costs and attorney fees or take any other action it deems proper; however, a privilege or the protection for trial preparation materials shall not be waived solely for a failure to timely object under this section.  If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production.  Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

3.a.On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:

(1)fails to allow reasonable time for compliance,

(2)requires a person to travel to a place beyond the limits allowed under paragraph 3 of subsection A of this section,

(3)requires disclosure of privileged or other protected matter and no exception or waiver applies,

(4)subjects a person to undue burden, or

(5)requires production of books, papers, documents or tangible things that fall outside the scope of discovery permitted by Section 3226 of this title.

b.If a subpoena:

(1)requires disclosure of a trade secret or other confidential research, development, or commercial information, or

(2)requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party,

the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena.  However, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

D.  DUTIES IN RESPONDING TO SUBPOENA.

1.a.A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

b.If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena shall produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.

c.A person responding to a subpoena is not required to produce the same electronically stored information in more than one form.

d.A person responding to a subpoena is not required to provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.  If such showing is made, the court may order discovery from such sources if the requesting party shows good cause, considering the limitations of subparagraph c of paragraph 2 of subsection B of Section 3226 of this title.  The court may specify conditions for the discovery.

2.a.When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

b.If information is produced in response to a subpoena that is subject to a claim or privilege or of protection as trial preparation material, the person making the claim may notify any party that received the information of the claim and the basis for such claim.  After being notified, a party shall promptly return, sequester, or destroy the specified information and any copies the party has and may not use or disclose the information until the claim is resolved.  A receiving party may promptly present the information to the court under seal for a determination of the claim.  If the receiving party disclosed the information before being notified, such shall take reasonable steps to retrieve the information.  The person who produced the information shall preserve the information until the claim is resolved.  This mechanism is procedural only and does not alter the standards governing whether the information is privileged or subject to protection as trial preparation material or whether such privilege or protection has been waived.

E.  CONTEMPT.

Failure by any person without adequate excuse to obey a subpoena served upon him or her may be deemed a contempt of the court from which the subpoena issued.

Added by Laws 1985, c. 277, § 4, eff. Nov. 1, 1985.  Amended by Laws 1993, c. 351, § 1, eff. Sept. 1, 1993; Laws 1994, c. 343, § 10, eff. Sept. 1, 1994; Laws 1996, c. 61, § 2, eff. Nov. 1, 1996; Laws 1998, c. 374, § 2, eff. Nov. 1, 1998; Laws 1999, c. 293, § 19, eff. Nov. 1, 1999; Laws 2000, c. 172, § 1, eff. Nov. 1, 2000; Laws 2002, c. 92, § 1, eff. Nov. 1, 2002; Laws 2002, c. 468, § 21, eff. Nov. 1, 2002; Laws 2007, c. 12, § 5, eff. Nov. 1, 2007; Laws 2010, c. 50, § 2, eff. Nov. 1, 2010.