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Rule 45. Subpoena.

(a) Form; issuance.

(a)(1) Every subpoena shall:

(a)(1)(A) issuefrom the court in which the action is pending;

(a)(1)(B) statethe title and case number of the action, the name of the court fromwhich it is issued, and the name and address of the party or attorneyresponsible for issuing the subpoena;

(a)(1)(C) commandeach person to whom it is directed

(a)(1)(C)(i) toappear and give testimony at a trial, hearing or deposition, or

(a)(1)(C)(ii) to appear and produce forinspection, copying, testing or sampling documents, electronically storedinformation or tangible things in the possession, custody or control of thatperson, or

(a)(1)(C)(iii) to copy documents orelectronically stored information in the possession, custody or control of thatperson and mail or deliver the copies to the party or attorney responsible forissuing the subpoena before a date certain, or

(a)(1)(C)(iv) toappear and to permit inspection of premises;

(a)(1)(D) ifan appearance is required, specify the date, time and place for the appearance;and

(a)(1)(E) includea notice to persons served with a subpoena in a form substantially similar tothe approved subpoena form. A subpoena may specify the form or forms in whichelectronically stored information is to be produced.

(a)(2) The clerk shall issue asubpoena, signed but otherwise in blank, to a party requesting it, who shallcomplete it before service. An attorney admitted to practice in Utah may issueand sign a subpoena as an officer of the court.

(b) Service; fees; prior notice.

(b)(1) A subpoena may be served by anyperson who is at least 18 years of age and not a party to the case. Service ofa subpoena upon the person to whom it is directed shall be made as provided inRule 4(d).

(b)(2) If the subpoena commands aperson's appearance, the party or attorney responsible for issuing the subpoenashall tender with the subpoena the fees for one day's attendance and themileage allowed by law. When the subpoena is issued on behalf of the UnitedStates, or this state, or any officer or agency of either, fees and mileageneed not be tendered.

(b)(3) If the subpoena commands aperson to copy and mail or deliver documents or electronically storedinformation, to produce documents, electronically stored information ortangible things for inspection, copying, testing or sampling or to permit inspectionof premises, the party or attorney responsible for issuing the subpoena shallserve each party with the subpoena by delivery or other method of actual noticebefore serving the subpoena.

(c) Appearance; resident; non-resident.

(c)(1) A person who resides in thisstate may be required to appear:

(c)(1)(A) at atrial or hearing in the county in which the case is pending; and

(c)(1)(B) at adeposition, or to produce documents, electronically stored information ortangible things, or to permit inspection of premises only in the county inwhich the person resides, is employed, or transacts business in person, or atsuch other place as the court may order.

(c)(2) A person who does not reside inthis state but who is served within this state may be required to appear:

(c)(2)(A) at atrial or hearing in the county in which the case is pending; and

(c)(2)(B) at adeposition, or to produce documents, electronically stored information ortangible things, or to permit inspection of premises only in the county inwhich the person is served or at such other place as the court may order.

(d) Payment of production or copying costs. The party or attorney responsiblefor issuing the subpoena shall pay the reasonable cost of producing or copyingdocuments, electronically stored information or tangible things. Upon therequest of any other party and the payment of reasonable costs, the party orattorney responsible for issuing the subpoena shall provide to the requestingparty copies of all documents, electronically stored information or tangiblethings obtained in response to the subpoena or shall make the tangible thingsavailable for inspection.

(e) Protection of persons subject to subpoenas; objection.

(e)(1) The party or attorneyresponsible for issuing a subpoena shall take reasonable steps to avoidimposing an undue burden or expense on the person subject to the subpoena. Thecourt shall enforce this duty and impose upon the party or attorney in breachof this duty an appropriate sanction, which may include, but is not limited to,lost earnings and a reasonable attorney fee.

(e)(2) A subpoena to copy and mail ordeliver documents or electronically stored information, to produce documents,electronically stored information or tangible things, or to permit inspectionof premises shall comply with Rule 34(a) and (b)(1), except that the person subject to thesubpoena must be allowed at least 14 days after service to comply.

(e)(3) The person subject to thesubpoena or a non-party affected by the subpoena may object under Rule 37 if the subpoena:

(e)(3)(A) failsto allow reasonable time for compliance;

(e)(3)(B) requiresa resident of this state to appear at other than a trial or hearing in a countyin which the person does not reside, is not employed, or does not transactbusiness in person;

(e)(3)(C) requires a non-resident ofthis state to appear at other than a trial or hearing in a county other thanthe county in which the person was served;

(e)(3)(D) requiresthe person to disclose privileged or other protected matter and no exception orwaiver applies;

(e)(3)(E) requires the person todisclose a trade secret or other confidential research, development, orcommercial information;

(e)(3)(F) subjects the person to anundue burden or cost;

(e)(3)(G) requires the person toproduce electronically stored information in a form or forms to which theperson objects;

(e)(3)(H) requires the person toprovide electronically stored information from sources that the personidentifies as not reasonably accessible because of undue burden or cost; or

(e)(3)(I) requires the person todisclose an unretained expert's opinion orinformation not describing specific events or occurrences in dispute andresulting from the expert's study that was not made at the request of a party.

(e)(4)(A) If the person subject to thesubpoena or a non-party affected by the subpoena objects, the objection must bemade before the date for compliance.

(e)(4)(B) The objection shall be statedin a concise, non-conclusory manner.

(e)(4)(C) If the objection is that theinformation commanded by the subpoena is privileged or protected and noexception or waiver applies, or requires the person to disclose a trade secretor other confidential research, development, or commercial information, theobjection shall sufficiently describe the nature of the documents,communications, or things not produced to enable the party or attorneyresponsible for issuing the subpoena to contest the objection.

(e)(4)(D) If the objection is that theelectronically stored information is from sources that are not reasonablyaccessible because of undue burden or cost, the person from whom discovery issought must show that the information sought is not reasonably accessiblebecause of undue burden or cost.

(e)(4)(E) The objection shall be servedon the party or attorney responsible for issuing the subpoena. The party orattorney responsible for issuing the subpoena shall serve a copy of theobjection on the other parties.

(e)(5) If objection is made, or if aparty requests a protective order, the party or attorney responsible forissuing the subpoena is not entitled to compliance but may request an order tocompel compliance under Rule 37(a). The objection or request shall beserved on the other parties and on the person subject to the subpoena. An ordercompelling compliance shall protect the person subject to or affected by thesubpoena from significant expense or harm. The court may quash or modify thesubpoena. If the party or attorney responsible for issuing the subpoena shows asubstantial need for the information that cannot be met without undue hardship,the court may order compliance upon specified conditions.

(f) Duties in responding to subpoena.

(f)(1) A person commanded to copy andmail or deliver documents or electronicallystored information or to produce documents, electronically stored informationor tangible things shall serve on the party or attorney responsible for issuingthe subpoena a declaration under penalty of law stating in substance:

(f)(1)(A) thatthe declarant has knowledge of the facts contained in thedeclaration;

(f)(1)(B) thatthe documents, electronically stored information or tangible things copied orproduced are a full and complete response to the subpoena;

(f)(1)(C) thatthe documents, electronically stored information or tangible things are theoriginals or that a copy is a true copy of the original; and

(f)(1)(D) thereasonable cost of copying or producing the documents, electronically storedinformation or tangible things.

(f)(2) A person commanded to copy andmail or deliver documents or electronically stored information or to producedocuments, electronically stored information or tangible things shall copy orproduce them as they are kept in the usual course of business or shall organizeand label them to correspond with the categories in the subpoena.

(f)(3) If a subpoena does not specifythe form or forms for producing electronically stored information, a personresponding to a subpoena must produce the information in the form or forms inwhich the person ordinarily maintains it or in a form or forms that arereasonably usable.

(f)(4) If the information produced inresponse to a subpoena is subject to a claim of privilege or of protection astrial-preparation material, the person making the claim may notify any partywho received the information of the claim and the basis for it. After beingnotified, the party must promptly return, sequester, or destroy the specifiedinformation and any copies of it and may not use or disclose the informationuntil the claim is resolved. A receiving party may promptly present theinformation to the court under seal for a determination of the claim. If thereceiving party disclosed the information before being notified, it must take reasonablesteps to retrieve the information. The person who produced the information mustpreserve the information until the claim is resolved.

(g) Contempt. Failure by any person without adequate excuse to obeya subpoena served upon that person is punishable as contempt of court.

(h) Procedure when witness evades service or fails to attend. If a witness evades service of asubpoena or fails to attend after service of a subpoena, the court may issue awarrant to the sheriff of the county to arrest the witness and bring thewitness before the court.

(i) Procedure when witness is an inmate. If the witness is an inmateconfined in an institution, a party may move for an order to examine thewitness in the institution or to produce the witness before the court orofficer for the purpose of being orally examined.

(j) Subpoena unnecessary. A person present in court or before a judicial officermay be required to testify in the same manner as if the person were inattendance upon a subpoena.

Advisory Committee Notes

 

Effective May 1, 2017