TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 7, 2008
RE: Rule 45, N.D.R.Civ.P, Subpoena
Mr. Plambeck has submitted a e-mail to the Committee passing along concerns expressed by a colleague regarding possible subpoena abuse. Abuses noted include issuing subpoenas without providing notice to other parties or providing an opportunity to object .
Mr. Plambeck addresses his colleague's concerns at length and explains why the problems cited are already addressed by the rules. The fact, however, that attorneys apparently do not understand the requirements of the Rule 45 suggests that the rule may not be a model of clarity.
Staff has prepared a proposed draft of Rule 45 that includes the federal form and style changes and some additional changes that specifically address the issues raised in Mr. Plambeck's e-mail.
In general, the proposed changes are not substantive. Instead, the main changes are the addition of titles to paragraphs and subparagraphs to ease navigation through the rule and the rewriting of passive language in the active voice. The Committee may wish to take a detailed look at the changes to make sure that no substantive changes have been inadvertently made through language clean-up.
Staff has included some features of the federal rule that were not previously included in Rule 45:
At (a)(1)(B), there is a new requirement that the method for recording testimony in a deposition be specified;
At (c)(4), the grounds for quashing a subpoena are divided into mandatory and discretionary grounds and the court is given the option of specifying conditions instead of quashing.
In response to Mr. Plambeck's concerns, staff has redrafted (b)(2) in attempt to clearly state that notice to other parties must be served BEFORE a subpoena for testimony or production is served.
Staff has made only limited changes to the explanatory note. Additional language in the explanatory note will depend on the changes the Committee decides to accept.
The Rule 45 proposal is attached. Because of the importance of this rule, the Committee may wish to consider including proposed amendments in the Annual Rules Package rather than the Civil Rules Package.