§ Rule 45 Subpoenas

Rule 45. Subpoenas

(a) Subpoena--For attendance of witnesses--Issuance. Every subpoena shall be issued by the clerk of the district court under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to appear to give testimony at trial, or at hearing, or at deposition at a time and place therein specified. A command to produce or to permit inspection and copying of documents, electronically stored information or tangible things, or to permit inspection of premises, may be joined with a command to appear at trial, or at hearing or at deposition, or may be issued separately. The clerk shall issue a subpoena, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. Provided, an attorney licensed in Idaho as officer of the court may also issue and sign a subpoena.

(b) Subpoena for Production or Inspection of Documents, Electronically Stored Information or Tangible Things, or
Inspection of Premises. If the subpoena is for a party to attend a deposition, the scope and procedure shall comply with Rule 34, and the party must be allowed at least 30 days to comply.

(1) A subpoena to attend a deposition, trial or hearing may command the person to whom it is directed to produce or permit inspection and copying of the books, papers, documents, electronically stored information or tangible things designated therein. If the subpoena is for a party to attend a deposition, the scope and procedure shall comply with Rule 34, and the party must be allowed at least 30 days to comply.

(2) A subpoena to command a person who is not a party to produce or to permit inspection and copying of documents, electronically stored information, or tangible things, or to permit inspection of premises may be served at any time after commencement of the action. Unless otherwise ordered by the court, the party serving the subpoena shall serve a copy of the subpoena on the opposing party at least seven (7) days prior to service on the third party. The party serving the subpoenas shall pay the reasonable cost of producing or copying the documents, electronically stored information or tangible things. Upon the request of any other party and the payment of reasonable costs, the party serving the subpoena shall provide to the requesting party copies of all documents obtained in response to the subpoena.

(3) A person commanded to produce or permit inspection and copying of documents, electronically stored information or tangible things or to permit inspection of premises need not appear in person at the place of production or inspection unless also commanded to appear at trial, at hearing or at deposition.

(4) 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.

IN THE DISTRICT COURT OF THE ___ JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR __________ COUNTY

(MAGISTRATE DIVISION)

Party's name and

designation,

vs.

SUBPOENA

Party's name and

designation.

The State of Idaho to: __________:

YOU ARE COMMANDED:

[ ] to appear in the Court at the place, date and time specified below to testify in the above case.

[ ] appear at the place, date and time specified below to testify at the taking of a deposition in the above case.

[ ] to produce or permit inspection and copying of the following documents or objects, including electronically stored information, at the place, date and time specified below. (list documents or objects)

[ ] to permit inspection of the following premises at the date and time specified below.

PLACE DATE AND TIME: _________________________________________________________

You are further notified that if you fail to appear at the place and time specified above, or to produce or permit copying or
inspection as specified above that you may be held in contempt of court and that the aggrieved party may recover from you the sum of $100 and all damages which the party may sustain by your failure to comply with this subpoena.

Dated this ___ day of __________, 20 ___.

By order of the court.

__________

Clerk

__________

Deputy

(Court Seal)

(d) Protection Against Subpoena. The court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable, oppressive, fails to allow time for compliance, requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects a person to undue burden or (2) condition compliance with the subpoena upon the advancement of the reasonable cost of producing the books,

papers, documents, electronically stored information or tangible things by the person in whose behalf the subpoena is issued.

(e)(1) Witness Fees and Expenses. Witness fees and expenses in the district court and the magistrates division thereof shall be in the amounts provided for under Rule 54(d)(1).

(2) Service of Subpoena. A subpoena may be served by an officer authorized by law to serve process or by any other person who is not a party and is not less than eighteen (18) years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by giving or offering to the person at the same time, if demanded, the fees for one (1) day's attendance and the mileage allowed by law, except that no prepayment tender of fees and mileage shall be necessary to witnesses subpoenaed by the attorney general or any prosecuting attorney on behalf of the state. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. When service is by an officer it must be returned with the officer's certificate of service, and when served by any other person it must be returned with an affidavit of such person of its service.

(f)(1) Subpoena for Taking Depositions--Place of Examination. Proof of service of a notice to take a deposition as provided in Rules 30 and 31, or the presentation of a stipulation for the taking thereof, constitutes a sufficient authorization for the issuance by the clerk of the district court for the county in which the action is pending, or by the clerk of the district court for the county in which a deposition is being taken to be used in an action pending in another state or country, of subpoenas for the person named or described therein. The subpoena commanding the appearance of a witness at a deposition may also command the person to whom it is directed to produce or to permit inspection and copying of designated books, papers, documents, electronically stored information, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 30 and subdivision (b) of this Rule 45, except that if the action is pending out of the state, the court issuing the subpoena shall have the authority to enforce such rules.

(2) Depositions--Attendance Where Required. A resident of the state may be required to attend an examination only in the county wherein the resident resides or is employed or transacts business in person. A nonresident of the state may be required to attend in any county of the state wherein the nonresident is served with a subpoena.

(g) Subpoena for a Hearing or Trial. At the request of any party subpoenas for attendance at a hearing or trial shall be issued as provided by Rule 45(a), and such subpoenas for a hearing or trial in a district court or magistrates division may be served at any place within the state.

(h) Contempt for Nonobedience of Subpoena. Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of the court from which the subpoena issued, in addition to the penalties provided by law.

(i) Interstate Depositions and Discovery. This rule shall govern depositions and discovery conducted in Idaho in connection with a civil lawsuit brought in another state.

(1) Statement of Purpose. This rule (45(i)) constitutes Idaho's implementation of the Uniform Interstate Depositions and Discovery Act as modified herein.

(2) Definitions.In this rule:

(A) “Foreign jurisdiction” means a state other than this state.

(B) “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction.

(C) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

(D) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(E) “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:

(i) attend and give testimony at a deposition;

(ii) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

(iii) permit inspection of premises under the control of the person.

COMMENT

The Uniform Interstate Depositions and Discovery Act (the Act) has been adopted as Rule 45(i) of the Idaho Rules of Civil Procedure to enable an attorney prosecuting or defending a lawsuit outside the jurisdiction of Idaho to conduct discovery within Idaho. The rule does not apply to discovery arising out of litigation originating in foreign countries.

The term “Subpoena” includes a subpoena duces tecum. The description of a subpoena is based on the language of Rule 45 of the FRCP.

The term “Subpoena” does not include a subpoena for the inspection of a person (subsection 45(i)(2)(E)(iii) is limited to inspection of premises). Medical examinations in a personal injury case, for example, are separately controlled by state discovery rules (the corresponding State rule is Rule 35 of the IRCP).

The term “Court of Record” was chosen to exclude non-court of record proceedings from the ambit of the rule. A “Court of Record” includes anyone who is authorized to issue a subpoena under the laws of that state, which may include an attorney of record for a party in the proceeding.

(3) Issuance of Subpoena for Interstate Depositions and Discovery.

(A) To request issuance of a subpoena under this rule, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this rule does not constitute an appearance in the courts of this state. It does create the necessary jurisdiction in the State of Idaho to:

(i) enforce the subpoena;

(ii) quash or modify the subpoena;

(iii) issue any protective order or resolve any other dispute relating to the subpoena;

(iv) impose sanctions on the attorney requesting the issuance of the subpoena for any action which would constitute a violation of the Idaho Rules of Civil Procedure.

(B) When a party submits a foreign subpoena to a clerk of court in this state, the clerk shall promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.

(i) conform to the requirements of the Idaho Rules of Civil Procedure, including Rule 45, and conform substantially to the form provided in 45(c) but may otherwise incorporate the terms used in the foreign subpoena so long as they conform to the Idaho Rules of Civil Procedure;

(ii) advise the person to whom the subpoena is directed that such a person has a right to petition the Idaho court to quash or modify the subpoena under Rule 45(i)(6); and

(iii) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

COMMENT

Submitting a subpoena to the clerk of court in Idaho, so that a subpoena is then issued in the name of Idaho, is the necessary act that invokes the jurisdiction of Idaho, which in turn makes the newly issued subpoena both enforceable and challengeable in Idaho.

The standard procedure under this section will become as follows, using as an example a case filed in Kansas (the trial state) where the witness to be deposed lives in Idaho (the discovery state): A lawyer of record for a party in the action pending in Kansas will issue a subpoena in Kansas (the same way lawyers in Kansas routinely issue subpoenas in pending actions). The lawyer will then prepare an Idaho subpoena so that it conforms to the requirements of the Idaho Rules of Civil Procedure and may also incorporate the same terms of the Kansas subpoena--so long as they conform to the Idaho Rules of Civil Procedure. The lawyer will then hire a process server (or local counsel) in Idaho, who will take the completed and executed Kansas subpoena and the completed but not yet executed Idaho subpoena to the clerk's office in Idaho. In addition, the lawyer might prepare a short transmittal letter to accompany the Kansas subpoena, advising the clerk that an Idaho subpoena is being sought pursuant to Idaho Rule 45(i)(3). The clerk of court, upon being given the Kansas subpoena, will then issue the Idaho subpoena (“issue” includes signing and stamping). The process server (or other agent of the party) will then serve the Idaho subpoena on the deponent in accordance with Idaho law (which includes any applicable local rules).

The act of the clerk of court is ministerial, yet is sufficient to invoke the jurisdiction of Idaho over the deponent. The only documents that need to be presented to the clerk of court in Idaho are the subpoena issued in the trial state and the draft subpoena of Idaho. There is no requirement to hire local counsel to have the subpoena issued in Idaho, and there is no need to present the matter to a judge in Idaho before the subpoena can be issued. However, the rule requires that the Idaho subpoena “conform to the requirements of the Idaho Rules of Civil Procedure, including Rule 45, and conform substantially to the form provided in Rule 45(c)...” In effect, the clerk of court in Idaho issues the new subpoena which is then served on the deponent in accordance with the laws of Idaho. The process is simple and efficient, costs are kept to a minimum, and local counsel and judicial participation are unnecessary to have the subpoena issued and served in Idaho.

The rule requires that, when the subpoena is served, it contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel. This requirement imposes no significant burden on the lawyer obtaining the subpoena, given that the lawyer already has the obligation to send a notice of deposition to every counsel of record and any unrepresented parties. The benefits to Idaho, by contrast, are substantial. This requirement makes it easy for the deponent (or, as will frequently be the case, the deponent's lawyer) to learn the names of and contact the other lawyers in the case. This requirement can easily be met, since the subpoena will contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel (which is the same information that will ordinarily be contained on a notice of deposition and proof of service).

(4) Service of Subpoena for Interstate Depositions and Discovery. A subpoena issued by a clerk of court under subdivision 45(i)(3) of this rule must be served in compliance with Rule 45(e)(2), except that the officer or individual responsible for service shall not return a certificate of service or affidavit to the court that issued the subpoena under subdivision 45(i)(3). In issuing the subpoena, the clerk shall not create a file, and shall not collect a fee. Instead, the officer or individual responsible for service shall deliver a certificate of service or affidavit to the attorney who requested the subpoena. That attorney must retain the certificate of service or affidavit and furnish a copy to any party or to the deponent upon request.

COMMENT

The Idaho court clerk will not create a file when discovery is initiated nor collect a fee. This rule places the obligation of retaining the original subpoena and the proof of service on the lawyer initiating the discovery. A file will be created if a motion is brought to enforce, quash, or modify the subpoena.

(5) Deposition, Production, Inspection, Witness Fees, Expenses, Place of Examination, Attendance Where Required. Rules 45(a), 45(b), 45(e)(1), 45(f)(1) and 45(f)(2) shall also apply to subpoenas issued under subdivision 45(i)(3) of this rule.

COMMENT

The rule requires that the discovery permitted by this section must comply with the rules and laws of Idaho. Idaho has a significant interest in these cases in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery request. Therefore, the discovery procedure must be the same as it would be if the case had originally been filed in Idaho.

(6) Application to Court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under subdivision 45(i)(3) of this rule must comply with the rules or laws of Idaho and be submitted to the court in the county in which discovery is to be conducted or the deponent resides, is employed or transacts business.

(A) Action to Enforce a Subpoena. An action to enforce a subpoena under this rule shall be brought in accordance with any applicable rule or law of Idaho.

(B) Action to Quash or Modify a Subpoena. An action to quash or modify a subpoena under this rule shall be instituted by the filing of a petition. The petition shall be made promptly, at or before the time for compliance specified in the subpoena. The court may:

(i) quash or modify the subpoena if it is unreasonable, oppressive, fails to allow time for compliance, requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects a person to undue burden; or

(ii) condition compliance with the subpoena upon the advancement of the reasonable cost of producing the books, papers, documents, electronically stored information or tangible things by the person in whose behalf the subpoena is issued; and

(iii) impose sanctions.

COMMENT

The rule requires that any application to the court for a protective order, or to enforce, quash, or modify a subpoena, or for any other dispute relating to discovery under this rule, must comply with the law of Idaho. Those laws include Idaho's procedural, evidentiary, and conflict of laws rules. Idaho has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests, and this is easily accomplished by requiring that any discovery motions must be decided under the laws of Idaho. This protects the deponent by requiring that all applications to the court that directly affect the deponent must be made in Idaho.

Rule 45(i)(6)(A) envisions an action to enforce the subpoena. Ordinarily, such an action would be brought pursuant to Rule 75, IRCP, since that rule deals with contempt proceedings. However, the identification of Rule 75 should not suggest that is the sole basis to enforce a subpoena.

The term “modify” a subpoena means to alter the terms of a subpoena, such as the date, time, or location of a deposition.

Evidentiary issues that may arise, such as objections based on grounds such as relevance or privilege, are best decided in Idaho under the laws of Idaho (including its conflict of laws principles).

Nothing in this rule limits any party from applying for appropriate relief in the trial state. Applications to the court that affect only the parties to the action can be made in the trial state. For example, any party can apply for an order in the trial state to bar the deposition of the out-of-state deponent on grounds of relevance, and that motion would presumably be made and ruled on before the deposition subpoena is ever presented to the clerk of court in Idaho.

If a party makes or responds to an application to enforce, quash, or modify a subpoena in Idaho, the lawyer making or responding to the application must comply with Idaho's rules governing lawyers appearing in its courts. This rule does not change existing state rules governing out-of-state lawyers appearing in its courts. (See Idaho Rule of Professional Conduct 5.5 governing the unauthorized practice of law.)

(7) Uniformity of Application and Construction. In applying and construing this rule, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that have implemented the Uniform Interstate Depositions and Discovery Act.

(8) Application to Pending Action. This rule applies to requests for discovery in cases pending on the effective date of this rule, July 1, 2009.

The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.