TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 6, 2012
RE: Rule 45, N.D.R.Civ.P., Subpoena
Mr. Reierson has raised an issue regarding Rule 45 and the objection notice requirement. A copy of his email explaining his concerns is attached. He points out that Rule 45(a)(1)(A)(iii) requires a copy of the notice with "every subpoena" while Rule 45(f) limits the notice requirement to "subpoenas commanding pretrial or prehearing production of documents, electronically stored information, or tangible things or the inspection of premises."
Mr. Reierson suggests that the requirements of Rule 45(a) and Rule 45(f) are inconsistent and that some sort of amendment needs to be made so that the rule is clear. Two alternate drafts of Rule 45 are attached for the Committee's review: Alt. A contains a proposed amendment to Rule 45(a) that would limit the notice requirement to subpoenas demanding production; Alt. B contains a proposed amendment to Rule 45(f) that would extend the notice requirement to all subpoenas.
The notice requirement is not part of the federal rule. It was added to Rule 45 as part of the 1995 amendments. An excerpt of the Committee's January 1994 minutes is attached to provide some background on the rationale behind the notice requirement. The minutes say that the purpose of the requirement was to advise non-lawyers of their right to object to a subpoena and the procedure for making an objection. The Committee members amended the original objection notice proposal to limit it to pretrial or prehearing production and to require a valid reason for the objection to be stated.
The language in Rule 45(a) requiring the objection notice to be included in all subpoenas was added as part of the March 1, 2009, amendments to the rule. These amendments were designed to be consistent with the federal form and style amendments. The committee addressed Rule 45 before addressing the other civil rules because concerns had been raised that subpoena power was being abused. The main concern was that non-parties were being served with subpoenas without notice to all the parties and attorneys involved in a case. There is no record in the minutes of the new language in Rule 45(a) being specifically discussed.
If the Committee decides that Rule 45 should be amended, it should also consider whether any proposed amendment should be immediately to the Supreme Court so that it can be considered with the proposed amendments to the rule that are currently pending as part of the annual rules package. These amendments are included in the attached proposals.