RULE 45. SUBPOENA
(a) Form; Issuance.
(1) Every subpoena must
(A) state the title of the action, the name of the court in which it is filed, and its civil action number; and
(B) command each person to whom it is directed to attend and give testimony or to produce
and permit inspection,
and copying, testing, or sampling of
designated books, documents,
electronically stored information, or tangible things in the possession, custody or control of
that person, or upon order of the court for good cause shown, to permit inspection of
premises, at a time and place therein specified.
A copy of any court order must be attached to the subpoena.
A command to produce evidence or to permit inspection, copying, testing or sampling may be joined with a command to appear at a trial or hearing or at a deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(2) A subpoena must be issued by the clerk under the seal of the court or by an attorney for a party to the action or special proceeding. The subpoena must be issued in the name of the court for the county in which the action is filed. If issued by the clerk, it must be issued signed and sealed but otherwise blank, and the party requesting the subpoena shall complete it before service. If issued by an attorney for a party, the subpoena must be subscribed in the name of the attorney together with the attorney's office address and must identify the party for whom the attorney appears.
(3) A subpoena may be issued by the clerk, under seal of the court, to an attorney representing a party in a civil action pending in another state upon filing proof of service of notice under subdivision (b)(2), or to a party in a civil action pending in another state upon filing a letter of request from a foreign court. The subpoena must be issued in the name of the court for the county where the subpoena will be served. The subpoena may be used and discovery obtained within this state in the same manner and subject to the same conditions and limitations as if the action were pending within this state. Any dispute regarding the subpoena, or discovery demanded, needing judicial involvement must be submitted to the court for the county where the subpoena issued.
(b) Service; Notice.
(1) Service of Subpoena.
(A) Service of a subpoena upon a named person
therein must be made by personal
service under Rule 4(d) and,. A subpoena may be served at any place
within the state.
if the If a person's attendance is commanded,
by tendering to that person the fees for
one day's attendance and the mileage and travel expense allowed by law
must be tendered
to the person. The A witness need not obey the
a subpoena if the witness fee and payment
for mileage and travel expense are not tendered with the subpoena. The witness fee, mileage
and travel expense are not required to be tendered, if the witness fee, mileage and travel
expense are to be paid by this the state or any
a political subdivision thereof. A subpoena
may be served at any place within the state.
(2) Service of Notices.
(A) Service of a notice to take a deposition as provided in Rules 30(b) and 31(a) is
prerequisite for the issuance of a subpoena that commands a person to attend,
testimony and produce documents or things at a pretrial deposition.
(B) If a deposition notice has not been served, service
a notice for production,
inspection, or copying, testing, or sampling as provided in
this rule, is a prerequisite for the
issuance of a subpoena that commands production, inspection or copying,
sampling before trial. A description of the material to be produced, inspected or copied, or
a description of the premises to be inspected, must be included in the notice or attached to
(C) Notice must be served on each party in the manner set by Rule 5(b). A copy of
notice and of the proof of service are sufficient authorization for the clerk to issue a
subpoena for a pretrial deposition, pretrial production, pretrial inspection,
or pretrial copying,
pretrial testing, or pretrial sampling. The attorney's signature on a subpoena issued by
attorney for a party constitutes certification that notice was served.
(c) Protection of Person 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 in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.
(c) (2) (A) A person commanded to produce and permit inspection and
designated electronically stored materials, books, papers, documents or tangible things
inspection of premises need not appear in person at the place of production, inspection,
copying, testing, or sampling unless commanded to appear for a deposition, hearing or
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce, permit
or copying, testing, or sampling before a trial or
hearing may object in writing.
The objection must be received by the party or attorney designated in the subpoena within
10 ten days after receipt of the subpoena. If the time specified in the
compliance is less than 10 ten days, any objection must be received at
least 24 hours before
the time specified for compliance. If objection is made, the party serving the subpoena is not
entitled to production, inspection, or copying, testing, or
sampling except upon order of the
court by which the subpoena was issued. If objection is made, the party serving the subpoena
may, upon notice to the person commanded to produce, permit inspection,
testing, or sampling, move at any time for an order to compel production,
copying, testing, or sampling. An order to compel production, inspection,
testing, or sampling must protect any person who is not a party or an officer of a party
significant expense resulting from production, inspection, or copying,
testing, or sampling.
(3) A resident of this state may be required by subpoena to attend a deposition only in the county where that person resides, is employed or transacts business in person, or at such other convenient place as prescribed by order of court. A nonresident of this state may be required by subpoena to attend a deposition in any county of this state. A resident or nonresident may be required to attend a hearing or trial any place within this state.
(4) On timely motion, the court by which a subpoena was issued shall quash or modify a subpoena that
(i) fails to allow reasonable time for compliance;
(ii) requires attendance beyond the requirements of paragraph (c)(3) of this rule;
(iii) subjects a person to undue burden; or
(iv) 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.
(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 must 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 need not produce the same electronically stored information in more than one form.
(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(A). The court may specify conditions for 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 must be made expressly and must 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 of 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 it. After being notified, a receiving party must promptly return, sequester, or destroy the specified information and any copies it 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, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved.
(e) Contempt. Failure
by of any person without adequate excuse
to obey a subpoena served
upon that person may be a contempt of the court from which the subpoena issued. An
adequate cause for failure to obey exists when a subpoena purports to require a
nonparty to attend or produce at a place not within the limits provided by paragraph
(f) Notice. All subpoenas commanding pretrial or prehearing production,
copying, testing, or sampling must contain the following notice:
"You may object to this subpoena by sending or delivering a written objection, stating your
valid reason, to [Insert the name and address of the party, or attorney representing the party
seeking production, inspection,
or copying, testing, or
sampling]. Any objection must be
received within 10 ten days after you receive the subpoena. If the time
specified in the
subpoena for compliance is less than 10 ten days, any objection must
be received at least 24
hours before the time specified for compliance.
If you make a timely objection, you do not need to comply with this subpoena unless the court orders otherwise. You will be notified if the party serving the subpoena seeks a court order compelling compliance with this subpoena. You will then have the opportunity to contest enforcement.
Failure to obey this subpoena, without making a timely objection, and stating a valid reason, may be contempt of court."
Rule 45 was amended, effective July 1, 1981; January 1, 1988; January 1, 1995; March 1, 1997; March 1, 1999; March 1, 2008.
Rule 45 was revised, effective January 1, 1995, in response to the 1991 federal revision. Significant changes to North Dakota's rule include the following: (1) An action must be filed before a subpoena may issue; (2) A subpoena may compel a non-party to produce evidence independent of any deposition; (3) A subpoena may compel the inspection of premises in the possession of a non-party upon order of the court for good cause shown; and (4) Notice must be printed on a subpoena advising of the right to object when pretrial or prehearing production or inspection is commanded. The scope of discovery under Rule 26 is not intended to be altered by the revision.
Rule 45 was amended, effective March 1, 2008, in response to the 2006 federal revision. Language was added to the rule to clarify that production of electronically stored materials may be demanded by subpoena and to provide guidance in dealing with requests for electronically stored materials.
Subdivision (b) was amended, effective March 1, 2008, to eliminate the requirement for parties to serve a separate notice for production when commanding a person to attend a deposition to give testimony and produce documents or things.
Subdivision (f) was amended, effective March 1, 1999, to allow an objection to a subpoena to be sent via a commercial carrier as an alternative to mail.
SOURCES: Joint Procedure Committee Minutes of September 28-29, 2006, pages 25-27; April 27-28, 2006, pages 14-15; January 29-30, 1998, page 20; January 25-26, 1996, page 20; January 27-28, 1994, pages 11-16; April 29-30, 1993, pages 4-8, 18-20; January 28-29, 1993, pages 2-7; May 21-22, 1987, page 3; February 19-20, 1987, pages 3-4; October 30-31, 1980, pages 26-29; November 29-30, 1979, page 12; Fed.R.Civ.P. 45.
SUPERSEDED: N.D.R.C. §§ 31-0113, 31-0120, 31-0121, 31-0302, 31-0303, 31-0305, 31-0306, 31-0310, 31-0311, 31-0312, 31-0314 (1943); N.D.C.C. § 31-05-22.
CROSS REFERENCE: N.D.R.Civ.P. 26 (General Provisions Governing Discovery), N.D.R.Civ.P. 30 (Depositions Upon Oral Examination), and N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written Questions); N.D.R.Crim.P. 17 (Subpoena); N.D.R.Ev. 510 (Waiver of Privilege by Voluntary Disclosure).