TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 45, N.D.R.Civ.P., Subpoena
Mr. McLean suggested at the January meeting that the Committee take a look at N.D.R.Civ.P. 45(b). He questioned the subdivision's requirement that parties serve a "notice of production" when they subpoena a witness to appear to give testimony.
Under Rule 45(b), a party who seeks to command a person to appear and give testimony must provide a deposition notice with the subpoena. Under Rule 30(b)(1), the deposition rule, parties are instructed to list material to be produced at a deposition in the deposition notice itself rather than in a separate notice of production.
The federal subpoena rule, Fed.R.Civ.P. 45, recognizes the existence of a notice "for production and inspection," but such a document is required only if a subpoena duces tecum is issued "separate from a subpoena commanding a person's attendance." The federal rule also states "A command to produce evidence may be joined with a command to appear at trial or hearing or at a deposition, or may be issued separately."
Consistent with the federal rule and Mr. McLean's suggestion, staff has prepared a proposed amended version of Rule 45 that contains language allowing a party to serve a deposition notice that contains a command to produce document or things at the deposition, without requiring a separate notice of production. The proposal retains the option for the party to issue a notice of production when a deposition notice is not issued.
Form and style amendments to Rule 45(b), designed to make the subdivision easier to navigate, are also proposed. The rule amendment proposal is attached.