TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 8, 2008
RE: Rule 45, N.D.R.Civ.P., Subpoena
The Committee has recommended fairly extensive amendments to Civil Rule 45 and the Committee's proposal is before the Supreme Court as part of the Annual Rules Package.
On August 21, 2008, attorney Michael McIntee submitted comments to the Supreme Court on the proposed amendments to Rule 45. He suggests several possible further amendments to Rule 45. His comments are attached as is a copy of Rule 45 with the Committee's proposed amendments.
Because the Supreme Court will likely be addressing Mr. McIntee's comments during the hearing on the Committee's proposal, it would be appropriate for the Committee to discuss the comments. Staff can then forward the Committee's thoughts to the Court prior to the hearing.
Mr. McIntee's first two suggestions seem to deal with subpoenas to parties. Under the civil rules, testimony and information from parties is gathered, for the most part, through the use of discovery provisions, not subpoenas.
In considering Mr. McIntee's first two suggestions, the Committee may wish to discuss under what circumstances a party may need to subpoena another party. Once the circumstances are understood, the Committee may wish to discuss whether Mr. McIntee's suggestions could best be dealt with in an explanatory note, a rule amendment, or by other means.
Mr. McIntee's third suggestion deals with a subpoena to a minor or incompetent person, specifically a subpoena requiring the testimony of such a person. Mr. McIntee indicates that such a subpoena is generally served on the parent or guardian of the person. Mr. McIntee indicates that the parents or guardian sometimes object to such a subpoena when the possibility exists that the minor or incompetent person may testify against the parent or guardian.
The rules recognize that the interests of parent and child, for example, may sometimes be at odds and provide for the appointment of a guardian ad litem in such a situation. See N.D.R.Civ.P. 17 (Parties Plaintiff and DefendantCapacity). Mr. McIntee seems to be suggesting that Rule 45 be amended to compel the parent or guardian of a minor or incompetent person to produce that person for testimony regardless of any objections the parent or guardian may have. The Committee may wish to discuss whether there is any way to amend Rule 45 to take Mr. McIntee's concerns into account while still preserving the right of a party facing a subpoena to object.