TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: May 1, 2016
RE: Rule 17, N.D.R.Crim.P., Subpoena
Committee member Bob Hoy has located language in Rule 17 that seems to require a court order before a subpoena can be issued to compel attendance at a deposition in a criminal case. He requests that the committee consider amendments allowing an attorney to issue deposition subpoenas. His email is attached
Proposed amendments to Rule 17 that would allow an attorney for a party to the proceeding to issue a deposition subpoena are attached.
Paragraph (a)(2) of Rule 17 already allows attorneys to issue subpoenas under the rule. This is different from the federal rule, copy attached, which does not contain this language. Paragraph (a)(2) has been part of the rule since 1983.
The proposed amendment would make the part of the rule on deposition subpoenas consistent with the rest of the rule and would also eliminate any reference to a court order for a deposition. N.D.R.Crim.P. 15, copy attached, is not wholly based on the federal rule and does not require court orders for all depositions.
The committee may wish to discuss whether it is necessary to retain paragraph (f)(2) given that Rule 15(a)(4) allows objections to subpoenas and Rule 15(b) has a procedure for witnesses who do not respond to subpoenas.