RULE 45. SUBPOENA
Form; Issuance In General.
(1) Form and Contents.
(A) Requirements. Every subpoena must:
(A) (i) state the title of the action, the name of
the court in which it is filed, is pending, and
its civil-action number; and
(B) (ii) command each person to whom it is directed to do
the following at a specified time
and place: attend and give testimony testify; or
to produce and permit inspection, copying,
testing, or sampling of designated books, documents, electronically
stored information, or
tangible things in the that person's possession, custody or
control of that person,; or upon
order of the court for good cause shown, to permit the inspection of
premises , at a time and
place therein specified.; and
(iii) set out the text of the notice in Rule 45(f).
A copy of any court order must be attached to the subpoena.
(B) Command to Attend a Deposition; Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.
(C) Combining or Separating a Command to Produce or Permit Inspection; Specifying
Form for Electronically Stored Information. A command to produce
evidence or to
inspection, copying, testing or sampling documents, electronically stored
tangible things or to permit the inspection of premises may be joined with a
appear at a trial or hearing or included in a subpoena commanding attendance
deposition, hearing or trial or may be issued separatelyset out in a
separate subpoena. A
subpoena may specify the form or forms in which electronically stored information is to be
(D) Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
(2) Issued by Whom.
A subpoena must be issued by the
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 shall issue a subpoena 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, to
a party who requests it. and the party requesting the subpoena That
party shall complete it
before service. If issued by an An attorney for a
party , also may issue a subpoena, the
subpoena which must be subscribed in the name of
signed by the attorney together
with,include the attorney's office address and must identify
the party for whom the attorney
(3) Subpoena in Out-of-State Action.
A subpoena may be issued by
(A) In General. The clerk
, may issue a subpoena
under seal of the court to a party involved
in a civil action pending in another state if:
to an the party's attorney representing a party
in a civil action pending in another state
upon filing files proof of service of notice under subdivision
Rule 45 (b)(2) ,; or
to a the party in a civil action pending in
another state upon filing files a letter of request
from a foreign court.
(B) Requirements. 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.
Service of a A subpoena upon to a
named person must be made by personal service
served under Rule 4(d). A subpoena may be served at any place within the
a the subpoena requires the person's attendance is
commanded, fees for one day's
attendance, and mileage and travel expense allowed by law must be
tendered to the person.
A witness If fees, mileage and travel expense are not
tendered with the subpoena, the person
need not obey a the subpoena if the witness fee and payment
for mileage and travel expense
are not tendered with the subpoena. The witness fee, Fees,
mileage and travel expense are
need not required to be tendered , if the
witness fee, mileage and travel expense they are to
be paid by the state or a political subdivision.
(2) Service of Notices.
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 Notice of Deposition. If the
commands a person to attend, give testimony and produce documents, electronically stored
information or tangible things at a pretrial deposition, then before the subpoena
a notice to take a deposition must be served on each party.
(B) Notice of Demand for Production or Inspection. If a deposition notice has not
service of a notice for production, inspection, copying, testing, or sampling as
provided in this rule, is a prerequisite for the issuance of a subpoena that commands
production, inspection, copying, testing, or sampling and if the subpoena
production of documents, electronically stored information, or tangible things or the
inspection of premises before trial, then before it is served, a notice of demand for
production or inspection must be served on each party. A description of the material
produced, inspected or copied, or a description of the premises to be inspected, must be
included in the notice or attached to the notice.
(C) Notice Mandatory Before Service of Subpoena. The notice required by Rule
45(b)(2)(A) and (B) must be served on each party
in the manner set by
under Rule 5(b) . A
copy of the notice and of the proof of service are sufficient authorization for the clerk to
issue before a subpoena for a pretrial deposition, for pretrial
production , pretrial inspection,
pretrial copying, pretrial testing, or pretrial sampling. The attorney's signature on a
subpoena issued by an attorney for a party constitutes certification that notice was
documents, electronically stored information, or tangible things or for the inspection of
premises may be served.
Protection of Protecting a Person Subject to
Subpoenas a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for
the issuance and service of issuing and serving a subpoena shall take
reasonable steps to
avoid imposing undue burden or expense on a person subject to that
the subpoena. The
issuing court on behalf of which the subpoena was issued shall
must 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 fees, on a party
or attorney who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce documents,
stored information, or tangible things,
and or to permit
the inspection and copying of
designated electronically stored materials, books, papers, documents or tangible things or
inspection of premises need not appear in person at the place of
production , or inspection ,
copying, testing, or sampling unless also commanded to appear for a
deposition, hearing or
Subject to paragraph (d)(2) of this rule, a
A person commanded to produce ,
permit inspection, copying, testing, or sampling before a trial or hearing may object in
writing. The objection must be received by documents or tangible things or to
inspection may serve on the party or attorney designated in the subpoena a written
to inspecting, copying, testing or sampling any or all of the materials or to inspecting the
premises or to producing electronically stored information in the form or forms requested.
within ten days after receipt of the subpoena. If the time specified in the subpoena
compliance is less than ten days, any The objection must be received
at least before the
earlier of 24 hours before the time specified for compliance or ten days after the
is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
serving the subpoena
is not entitled to production, inspection, 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,
copying, testing, or sampling, may move at any time the
issuing court for an order to compel
compelling production , or inspection , copying,
testing, or sampling.
An order to compel production, inspection, copying, testing, or
sampling(ii) These acts may
be required only as directed in the order, and the order must protect any
a person who is not
neither a party or an nor a party's officer of a
party from significant expense resulting from
production, inspection, copying, testing, or sampling compliance.
(A) Resident Witness. A subpoena may require a resident of this state
may be required by
subpoena to attend a deposition only in the county where that
the person resides, is employed
or transacts business in person, or at such other a convenient place
as prescribed ordered by
order of the issuing court. A resident may be required to attend a
hearing or trial any place
within this state.
(B) Nonresident Witness. A subpoena may require a nonresident of this
required by subpoena who is served with a subpoena within this state to attend
,hearing or trial in any county of this state. A resident or nonresident may be
attend a hearing or trial any place within this state.
(4) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court
which a subpoena was issued
shall must quash or modify a subpoena that:
(i) fails to allow a reasonable time
for compliance to
(ii) requires attendance beyond the location requirements of
paragraph Rule 45 (c)(3) of this
subjects a person to undue burden; or requires disclosure of
privileged or other
protected matter, if no exception or waiver applies; or
requires disclosure of an unretained expert's opinion or information not
specific events or occurrences in dispute and resulting from the expert's study made not at
the request of any party subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or commercial information; or
(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.
(C) Specifying Conditions as an Alternative.
In the circumstances described in Rule 45 (c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
(A) Documents. A person responding to a subpoena to produce documents shall
them as they are kept in the
usual ordinary course of business or shall
organize and label
them to correspond with to the categories in the demand.
(B) Form for Producing Electronically Stored Information. If a subpoena does not
the a form or forms for producing electronically
stored information, a the person responding
to a subpoena must produce the information it in a
form or forms in which the person
ordinarily maintains it is ordinarily maintained or in a reasonably
usable form or forms that
are reasonably usable.
(C) Electronically Stored Information Produced in Only One Form.
A The person
responding to a subpoena need not produce the same electronically stored
more than one form.
(D) Inaccessible Electronically Stored Information.
The 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) Claiming Privilege or Protection.
(A) Information Withheld.
When information subject to a
subpoena is withheld on A
person withholding subpoenaed information under a claim that it is privileged or subject to
protection as trial preparation materials, the claim material
be made expressly make the claim; and
must be supported by a description of describe the
nature of the withheld documents,
communications, or tangible things not produced that is sufficient to enable the
party to contest the claim in a manner that, without revealing information itself
or protected, will enable the parties to assess the claim.
(B) Information Produced. 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
must not use or disclose the
information until the claim is resolved; must take reasonable steps to retrieve the information
if the receiving party disclosed it before being notified; . A receiving party
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
steps to retrieve it. The person who produced the information must preserve the
until the claim is resolved.
Failure of any The issuing court may hold in contempt
a person without who,
having been served, fails without adequate excuse to obey a the
subpoena served upon that
person may be a contempt of the court from which the subpoena issued. An
for A nonparty's failure to obey exists when a must be
excused if the subpoena purports to
require a the nonparty to attend or produce at a place not
within outside the limits provided
by paragraph (c)(3) of Rule 45(c)(3).
(f) Notice. All subpoenas commanding pretrial or prehearing
copying, testing, or sampling production of documents, electronically stored
or tangible things or the inspection of premises 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
production, inspection, copying, testing, or sampling production of
electronically stored information, or tangible things or the inspection of premises]. Any
objection must be received within ten days after you receive the subpoena. If the time
specified in the subpoena for compliance is less than 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; March 1, 2009.
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.
Rule 45 was amended, effective March 1, 2009, in response to the 2007 amendments to Fed.R.Civ.P. 45. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. 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.
Paragraph (b)(2) was amended, effective March 1, 2009, to make it clear that notice must be served on each party in a matter before a subpoena to take testimony or for production is served.
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 April 24-25, 2008, pages 22-25; 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.
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.
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).