RULE 17. SUBPOENA
1 (a) Content.
2 (1) A subpoena must state the court's name and the title of the action, and
3 command the witness to attend and testify at the time and place the subpoena
4 specifies. The clerk or magistrate shall issue a signed blank subpoena, or a signed
5 blank subpoena for the production of documentary evidence or objects, to the party
6 requesting it, and that party must fill in the blanks before the subpoena is served.
7 (2) The attorney for a party to any proceeding may issue a subpoena, or a
8 subpoena for the production of documentary evidence or objects, in the court's
9 name. A subpoena issued by an attorney has the same effect as a subpoena issued
10 under Rule 17(a)(1). The subpoena must state the attorney's name, office address,
11 and the party for whom the attorney appears.
12 (b) [Deleted].
13 (c) Producing Documents and Objects.
14 (1) In General. A subpoena may order the witness to produce any books,
15 papers, documents, data, or other objects the subpoena designates. The court may
16 direct the witness to produce the designated items in court before trial or before
17 they are to be offered in evidence. When the items arrive, the court may permit the
18 parties and their attorneys to inspect all or part of them.
19 (2) Quashing or Modifying the Subpoena. On motion made promptly, the
20 court may quash or modify the subpoena if compliance would be unreasonable or
22 (d) Service. A peace officer or any nonparty who is at least 18 years old
23 may serve a subpoena. The server must deliver a copy of the subpoena to the
24 witness and must tender to the witness one day's witness attendance fee and the
25 legal mileage allowance. The server need not tender the attendance fee or mileage
26 allowance when the prosecution or an indigent defendant has requested the
28 (e) Place of service.
29 (1) In North Dakota. A subpoena requiring a witness to attend a hearing or
30 trial may be served anywhere within North Dakota.
31 (2) Witness Outside State. Service on a witness outside this state may be
32 made only as provided by law.
33 (3) Subpoena in Out-of-State Action. N.D.R.Ct. 5.1 defines the procedure
34 for discovery or depositions in an out-of-state action.
35 (f) Issuing a Deposition Subpoena.
36 (1) Issuance. An attorney for a party to the proceeding may issue a
37 subpoena for any witness to appear or produce documentary evidence at a
38 deposition. An order to take a deposition authorizes the clerk of court or a
39 magistrate to issue a subpoena for any witness named or described in the order.
40 (2) Place. After considering the convenience of the witness and the parties,
41 the court may order--and the subpoena may require--the witness to appear
42 anywhere the court designates.
43 (g) Contempt. Failure by any witness without adequate excuse to obey a
44 subpoena served upon that witness may be a contempt of the court from which the
45 subpoena issued.
46 (h) Information Not Subject to Subpoena. No party may subpoena a
47 statement of a witness or of a prospective witness under this rule. Rule 16 governs
48 the production of a statement.
49 EXPLANATORY NOTE
50 Rule 17 was amended September 1, 1983; March 1, 1990; March 1, 2006;
51 June 1, 2006; March 1, 2008; March 1, 2013; March 1, 2018.
52 Rule 17 follows Fed.R.Crim.P. 17 in substance and controls with respect to
53 all subpoenas in criminal cases issued by the courts of this state.
54 Rule 17 is not limited to subpoena for the trial. A subpoena may be issued
55 for a preliminary hearing, in aid of a grand jury investigation, for a deposition, or
56 for a determination of an issue of fact raised by a pretrial motion. Rule 17 is also
57 intended to obtain witnesses and documents for use as evidence, although it is not
58 a discovery device.
59 Rule 17 was amended, effective March 1, 2006, in response to the
60 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
61 language and organization of the rule were changed to make the rule more easily
62 understood and to make style and terminology consistent throughout the rules.
63 Paragraph (a)(1) follows Fed.R.Crim.P. 17(a) except that subpoenas may be
64 issued by the magistrate as well as the clerk of court. The fact that some of the
65 lesser state courts are without the benefit of a clerk necessitates this requirement.
66 Paragraph (a)(2) was amended, effective September 1, 1983, to provide that
67 an attorney for a party may issue subpoenas with the same effect as the clerk or
69 Subdivision (b), which provided assistance for indigent defendants seeking
70 to subpoena persons, was deleted, effective June 1, 2006. As of January 1, 2006,
71 the North Dakota Commission on Legal Counsel for Indigents became responsible
72 for providing defense services, including subpoenas, to indigent defendants.
73 Subdivision (c) follows Fed.R.Crim.P. 17(c) and authorizes issuance of a
74 subpoena duces tecum. Rule 17 generally is available to any "party" and this is no
75 less true of subdivision (c). Thus the prosecution as well as the defendant may use
76 subdivision (c), subject to the limitations imposed by the Fourth and Fifth
78 Subdivision (d) was amended, effective March 1, 2006, to simplify service
79 instructions for a subpoena and to eliminate outmoded methods of service.
80 Subdivision (d) was amended, effective March 1, 2008, to eliminate an obsolete
82 A subpoena will ordinarily be served by a peace officer although
83 subdivision (d) permits service by any person who is not a party and who is 18 or
84 more years old. Service of a subpoena under Fed.R.Crim.P. 17 has been held
85 effective only if the fee for one day's attendance and the mileage allowed by law
86 are tendered to the witness when the subpoena is delivered. Fees and mileage need
87 not be tendered if the subpoena is issued in behalf of the state or on behalf of a
88 defendant unable to pay.
89 Subdivision (e) is an adaptation of the Colorado Rules of Criminal
90 Procedure. Under N.D.C.C. ch. 31-03 (Means of Compelling Attendance of
91 Witnesses), North Dakota has adopted a Uniform Act to secure the attendance of
92 witnesses from another state in criminal proceedings. Under paragraph (e)(2)
93 service of subpoenas on witnesses out-of-state is governed by N.D.C.C. ch. 31-03.
94 Subdivision (e) was amended, effective March 1, 2013, to direct persons to
95 N.D.R.Ct. 5.1 for information about how to proceed with discovery in this state in
96 an action pending in an out-of-state court. N.D.R.Ct. 5.1 outlines procedure for
97 interstate depositions and discovery.
98 Subdivision (f) follows Fed.R.Crim.P. 17(f), with appropriate changes to
99 satisfy the requirements of North Dakota. Paragraph (f)(1) provides that a court
100 order for the taking of depositions gives authority to the clerk of court
101 magistrate or an attorney for a party to the proceeding to issue subpoenas for the
102 persons named or described therein.
103 Paragraph (f)(2) provides the court with discretion in determining where the
104 deposition is to be taken.
105 Subdivision (g) follows N.D.R.Civ.P. 45(e). This provision merely restates
106 existing law.
107 Subdivision (h) was adopted, effective September 1, 1983, to provide that
108 statements made by witnesses or prospective witnesses are not subject to subpoena
109 under Rule 17 but are subject to production in accordance with Rule 16. This
110 correlates to Rule 16's provisions relating to production of statements.
111 SOURCES: Joint Procedure Committee Minutes of September 29-30, 2016,
112 pages 27-28; January 26-27, 2012, pages 3-7; September 30, 2011, pages 12-15;
113 April 28-29, 2011, page 25; April 26-27, 2007, pages 22-23; April 27-28, 2006,
114 pages 2-5, 15-17; January 27-28, 2005, pages 13-14; April 20, 1989, page 4;
115 December 3, 1987, page 15; November 18-19, 1982, pages 10-13; October 15-16,
116 1981, pages 6-10; October 12-13, 1978, page 8; June 26-27, 1972, pages 14-20;
117 July 25-26, 1968, pages 6-10; Fed.R.Crim.P. 17.
118 STATUTES AFFECTED:
119 SUPERSEDED: N.D.C.C. § § 31-03-04, 31-03-07, 31-03-08, 31-03-09,
120 31-03-13, 31-06-07, 40-18-09.
121 CONSIDERED: N.D.C.C. § § 29-10.1-19, 31-03-01, 31-03-15, 31-03-16,
122 31-03-17, 31-03-18, 31-03-25, 31-03-26, 31-03-27, 31-03-28, 31-03-29, 31-03-30,
124 CROSS REFERENCE: N.D.R.Civ.P. 45 (Subpoena); N.D.R.Ct. 5.1
125 (Interstate Depositions and Discovery).