RULE 45. SUBPOENA
1 (a) In General.
2 (1) Form and Contents.
3 (A) Requirements. Every subpoena must:
4 (i) state the title of the action, the court in which it is pending, and its civil-
5 ction number;
6 (ii) command each person to whom it is directed to do the following at a
7 specified time and place: attend and testify; produce designated documents,
8 electronically stored information, or tangible things in that person's possession,
9 custody or control; or permit the inspection of premises; and
10 (iii) if the subpoena seeks only pretrial or prehearing production of
11 documents, electronically stored information, or tangible things or the inspection
12 of premises, set out the text of the notice in Rule 45(f).
13 (B) Command to Attend a Deposition; Notice of the Recording Method. A
14 subpoena commanding attendance at a deposition must state the method for
15 recording the testimony.
16 (C) Combining or Separating a Command to Produce or Permit Inspection;
17 Specifying the Form for Electronically Stored Information. A command to produce
18 documents, electronically stored information, or tangible things or to permit the
19 inspection of premises may be included in a subpoena commanding attendance at a
20 deposition, hearing or trial or may be set out in a separate subpoena. A subpoena
21 may specify the form or forms in which electronically stored information is to be
22 produced. The phrase "electronically stored information" includes reasonably
23 accessible metadata that will enable the party seeking production to have the
24 ability to access such information as the date sent, date received, author, and
25 recipients. The phrase does not include other metadata unless the party seeking
26 production and the subject of the subpoena agree otherwise or the court orders
27 otherwise on motion and a showing of good cause for the production of certain
29 (D) Command to Produce; Included Obligations. A command in a subpoena
30 to produce documents, electronically stored information, or tangible things
31 requires the responding party to permit inspection, copying, testing, or sampling of
32 the materials.
33 (2) Issued by Whom. The clerk
shall must issue a
subpoena in the name of
34 the court for the county in which the action is filed, signed
35 otherwise in blank, to a party who requests it. That party
shall must complete it
36 before service. An attorney authorized to practice in North Dakota
for a party also
37 may issue a subpoena, which must be signed by the attorney, include the attorney's
38 office address and identify the party the attorney represents.
39 (3) Subpoena in Out-of-State Action. N.D.R.Ct. 5.1 defines the procedure
40 for discovery or depositions in an out-of-state action.
41 (b) Service; Notice.
42 (1) Service of Subpoena.
43 (A) A subpoena to a named person must be served under Rule 4(d). A
44 subpoena may be served at any place within the state.
45 (B) If the subpoena requires the person's attendance, fees for one day's
46 attendance, mileage and travel expense allowed by law must be tendered. If fees,
47 mileage and travel expense are not tendered with the subpoena, the person need
48 not obey the subpoena. Fees, mileage and travel expense need not be tendered if
49 they are to be paid by the state or a political subdivision.
50 (2) Service of Notices.
51 (A) Notice of Deposition. If the subpoena commands a person to attend,
52 give testimony and produce documents, electronically stored information or
53 tangible things at a pretrial deposition, then before the subpoena is served, a notice
54 to take a deposition must be served on each party.
55 (B) Notice of Demand for Production or Inspection. If a deposition notice
56 has not been served, and if the subpoena commands the production of documents,
57 electronically stored information, or tangible things or the inspection of premises
58 before trial, then before it is served, a notice of demand for production or
59 inspection must be served on each party.
60 (C) Notice Mandatory Before Service of Subpoena. The notice required by
61 Rule 45(b)(2)(A) and (B) must be served on each party under Rule 5(b) before a
62 subpoena for a pretrial deposition, for pretrial production of documents,
63 electronically stored information, or tangible things or for the inspection of
64 premises may be served.
65 (c) Protecting a Person Subject to a Subpoena.
66 (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
67 responsible for issuing and serving a subpoena
must take reasonable steps to
68 avoid imposing undue burden or expense on a person subject to the subpoena. The
69 issuing court must enforce this duty and impose an appropriate sanction, which
70 may include lost earnings and reasonable attorney's fees, on a party or attorney
71 who fails to comply.
72 (2) Command to Produce Materials or Permit Inspection.
73 (A) Appearance Not Required. A person commanded to produce
74 documents, electronically stored information, or tangible things, or to permit the
75 inspection of premises need not appear in person at the place of production or
76 inspection unless also commanded to appear for a deposition, hearing or trial.
77 (B) Objections. A person commanded to produce documents or tangible
78 things or to permit inspection may serve on the party or attorney designated in the
79 subpoena a written objection to inspecting, copying, testing or sampling any or all
80 of the materials or to inspecting the premises or to producing electronically stored
81 information in the form or forms requested. The objection must be received before
82 the earlier of 24 hours before the time specified for compliance or ten days after
83 the subpoena is served. If an objection is made, the following rules apply:
84 (i) At any time, on notice to the commanded person, the serving party may
85 move the issuing court for an order compelling production or inspection.
86 (ii) These acts may be required only as directed in the order, and the order
87 must protect a person who is neither a party nor a party's officer from significant
88 expense resulting from compliance.
89 (3) Location.
90 (A) Resident Witness. A subpoena may require a resident of this state to
91 attend a deposition only in the county where the person resides, is employed or
92 transacts business in person, or at a convenient place ordered by the issuing court.
93 A resident may be required to attend a hearing or trial any place within this state.
94 (B) Nonresident Witness. A subpoena may require a nonresident of this
95 state who is served with a subpoena within this state to attend a deposition ,hearing
96 or trial in any county of this state.
97 (4) Quashing or Modifying a Subpoena.
98 (A) When Required. On timely motion, the issuing court must quash or
99 modify a subpoena that:
100 (i) fails to allow a reasonable time to comply;
101 (ii) requires attendance beyond the location requirements of Rule 45 (c)(3);
102 (iii) requires disclosure of privileged or other protected matter, if no
103 exception or waiver applies; or
104 (iv) subjects a person to undue burden.
105 (B) When Permitted. To protect a person subject to or affected by a
106 subpoena, the issuing court may, on motion, quash or modify the subpoena if it
108 (i) disclosing a trade secret or other confidential research, development, or
109 commercial information; or
110 (ii) disclosing an unretained expert's opinion or information that does not
111 describe specific occurrences in dispute and results from the expert's study that
112 was not requested by a party.
113 (C) Specifying Conditions as an Alternative. In the circumstances described
114 in Rule 45 (c)(3)(B), the court may, instead of quashing or modifying a subpoena,
115 order appearance or production under specified conditions if the serving party:
116 (i) shows a substantial need for the testimony or material that cannot
117 otherwise be met without undue hardship; and
118 (ii) ensures that the subpoenaed person will be reasonably compensated.
119 (d) Duties in Responding to a Subpoena.
120 (1) Producing Documents or Electronically Stored Information.
121 (A) Documents. A person responding to a subpoena to produce documents
shall must produce them as they are kept in the ordinary
course of business or
123 must organize and label them to correspond to the categories in the demand.
124 (B) Form for Producing Electronically Stored Information. If a subpoena
125 does not specify a form for producing electronically stored information, the person
126 responding must produce it in a form or forms in which it is ordinarily maintained
127 or in a reasonably usable form or forms.
128 (C) Electronically Stored Information Produced in Only One Form. The
129 person responding need not produce the same electronically stored information in
130 more than one form.
131 (D) Inaccessible Electronically Stored Information. The person responding
132 need not provide discovery of electronically stored information from sources that
133 the person identifies as not reasonably accessible because of undue burden or cost.
134 On motion to compel discovery or to quash, the person from whom discovery is
135 sought must show that the information sought is not reasonably accessible because
136 of undue burden or cost. If that showing is made, the court may nonetheless order
137 discovery from such sources if the requesting party shows good cause, considering
138 the limitations of Rule 26(b)(1)(B). The court may specify conditions for
140 (2) Claiming Privilege or Protection.
141 (A) Information Withheld. A person withholding subpoenaed information
142 under a claim that it is privileged or subject to protection as trial preparation
143 material must:
144 (i) expressly make the claim; and
145 (ii) describe the nature of the withheld documents, communications, or
146 tangible things in a manner that, without revealing information itself privileged or
147 protected, will enable the parties to assess the claim.
148 (B) Information Produced. If information is produced in response to a
149 subpoena that is subject to a claim of privilege or of protection as trial-preparation
150 material, the person making the claim may notify any party that received the
151 information of the claim and the basis for it. After being notified, a receiving party
152 must promptly return, sequester, or destroy the specified information and any
153 copies it has; must not use or disclose the information until the claim is resolved;
154 must take reasonable steps to retrieve the information if the receiving party
155 disclosed it before being notified; and may promptly present the information to the
156 court under seal for a determination of the claim. The person who produced the
157 information must preserve the information until the claim is resolved.
158 (e) Contempt. The issuing court may hold in contempt a person who, having
159 been served, fails without adequate excuse to obey the subpoena. A nonparty's
160 failure to obey must be excused if the subpoena purports to require the nonparty to
161 attend or produce at a place outside the limits of Rule 45(c)(3).
162 (f) Notice. All subpoenas commanding only pretrial or prehearing
163 production of documents, electronically stored information, or tangible things or
164 the inspection of premises must contain the following notice:
165 "You may object to this subpoena by sending or delivering a written
166 objection, stating your valid reason, to [Insert the name and address of the party, or
167 attorney representing the party seeking production of documents, electronically
168 stored information, or tangible things or the inspection of premises]. Any objection
169 must be received within ten days after you receive the subpoena. If the time
170 specified in the subpoena for compliance is less than ten days, any objection must
171 be received at least 24 hours before the time specified for compliance.
172 If you make a timely objection, you do not need to comply with this
173 subpoena unless the court orders otherwise. You will be notified if the party
174 serving the subpoena seeks a court order compelling compliance with this
175 subpoena. You will then have the opportunity to contest enforcement.
176 Failure to obey this subpoena, without making a timely objection, and
177 stating a valid reason, may be contempt of court."
178 EXPLANATORY NOTE
180 Rule 45 was amended, effective July 1, 1981; January 1, 1988; January 1,
181 1995; March 1, 1997; March 1, 1999; March 1, 2007; March 1, 2008; March 1,
182 2009; March 1, 2012; March 1, 2013; March 1, 2014; _________________.
183 Rule 45 was revised, effective January 1, 1995, in response to the 1991
184 federal revision. Significant changes to North Dakota's rule include the following:
185 (1) An action must be filed before a subpoena may issue; (2) A subpoena may
186 compel a non-party to produce evidence independent of any deposition; (3) A
187 subpoena may compel the inspection of premises in the possession of a non-party;
188 and (4) Notice must be printed on a subpoena advising of the right to object when
189 pretrial or prehearing production or inspection is commanded. The scope of
190 discovery under Rule 26 is not intended to be altered by the revision.
191 Rule 45 was amended, effective March 1, 2008, in response to the 2006
192 federal revision. Language was added to the rule to clarify that production of
193 electronically stored materials may be demanded by subpoena and to provide
194 guidance in dealing with requests for electronically stored materials.
195 Rule 45 was amended, effective March 1, 2009, in response to the 2007
196 amendments to Fed.R.Civ.P. 45. The language and organization of the rule were
197 changed to make the rule more easily understood and to make style and
198 terminology consistent throughout the rules.
199 Subparagraph (a)(1)(A)(iii) was amended, effective March 1, 2013, to
200 clarify that the notice required by subdivision (f) must be made part of the
201 subpoena when the subpoena seeks only pretrial or prehearing production of
202 documents, electronically stored information, or tangible things or the inspection
203 of premises.
204 Subparagraph (a)(1)(C) was amended, effective March 1, 2014, to explain
205 that the phrase "electronically stored information" includes reasonably accessible
207 Paragraph (a)(2) was amended, effective ______________, to remove the
208 requirement that a subpoena issued by a clerk be sealed.
209 Paragraph (a)(3) was amended, effective March 1, 2013, to direct persons to
210 N.D.R.Ct. 5.1 for information about how to proceed with discovery in this state in
211 an action pending in an out-of-state court. N.D.R.Ct. 5.1 outlines procedure for
212 interstate depositions and discovery.
213 Subdivision (b) was amended, effective March 1, 2007, to eliminate the
214 requirement for parties to serve a separate notice for production when
215 commanding a person to attend a deposition to give testimony and produce
216 documents or things.
217 Paragraph (b)(2) was amended, effective March 1, 2009, to make it clear
218 that notice must be served on each party in a matter before a subpoena to take
219 testimony or for production is served.
220 Subdivision (f) was amended, effective March 1, 1999, to allow an
221 objection to a subpoena to be sent via a commercial carrier as an alternative to
223 SOURCES: Joint Procedure Committee Minutes of
224 ___________________; January 31-February 1, 2013, pages 24-25; September 27,
225 2012, pages 8-10; January 26-27, 2012, pages 3-7; September 30, 2011, pages 12-
226 15; April 28-29, 2011, page 25; September 23-24, 2010, pages 32-33; April 24-25,
227 2008, pages 22-25; September 28-29, 2006, pages 25-27; April 27-28, 2006, pages
228 14-15; January 29-30, 1998, page 20; January 25-26, 1996, page 20; January 27-
229 28, 1994, pages 11-16; April 29-30, 1993, pages 4-8, 18-20; January 28-29, 1993,
230 pages 2-7; May 21-22, 1987, page 3; February 19-20, 1987, pages 3-4; October 30-
231 31, 1980, pages 26-29; November 29-30, 1979, page 12; Fed.R.Civ.P. 45.
232 STATUTES AFFECTED:
233 SUPERSEDED: N.D.C.C. § 31-05-22
234 CROSS REFERENCE: N.D.R.Civ.P. 26 (General Provisions Governing
235 Discovery), N.D.R.Civ.P. 30 (Depositions Upon Oral Examination), and
236 N.D.R.Civ.P. 31 (Depositions of Witnesses Upon Written Questions);
237 N.D.R.Crim.P. 17 (Subpoena); N.D.R.Ev. 510 (Waiver of Privilege by Voluntary
238 Disclosure); N.D.R.Ct. 5.1 (Interstate Depositions and Discovery).