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Rule 45. Subpoena.

(a) Form; issuance.

(1)Every subpoena shall:

(A)issue from the court in which the action is pending;

(B)state the title and case number of the action, the name ofthe court from which it is issued, and the name and address of theparty or attorney responsible for issuing the subpoena;

(C)command each person to whom it is directed

(i)to appear and give testimony at a trial, hearing or deposition, or

(ii)to appear and produce for inspection, copying, testing or sampling documents,electronically stored information or tangible things in the possession, custodyor control of that person, or

(iii)to copy documents or electronically stored information in the possession,custody or control of that person and mail or deliver the copies to the partyor attorney responsible for issuing the subpoena before a date certain, or

(iv)to appear and to permit inspection of premises;

(D)if an appearance is required, give notice of the date, time, and place for theappearance and, if remote transmission is requested, instructionsfor participation and whom to contact if there are technical difficulties; and

(E)include a notice to persons served with a subpoena in a form substantiallysimilar to the approved subpoena form. A subpoena may specify the form or formsin which electronically stored information is to be produced.

(2)The clerk shall issue a subpoena, signed but otherwise in blank, to a partyrequesting it, who shall complete it before service. An attorney admitted topractice in Utah may issue and sign a subpoena as an officer of the court.

(b) Service; fees; prior notice.

(1) A subpoena may be served by any person who is atleast 18 years of age and not a party to the case. Service of a subpoena uponthe person to whom it is directed shall be made as provided in Rule 4(d).

(2) If the subpoena commands a person's appearance, theparty or attorney responsible for issuing the subpoena shall tender with thesubpoena the fees for one day's attendance and the mileage allowed by law. Whenthe subpoena is issued on behalf of the United States, or this state, or anyofficer or agency of either, fees and mileage need not be tendered.

(3) If the subpoena commands a person to copy and mailor deliver documents or electronically stored information, to producedocuments, electronically stored information or tangible things for inspection,copying, testing or sampling or to permit inspection of premises, the party orattorney responsible for issuing the subpoena shall serve each party with thesubpoena by delivery or other method of actual notice before serving thesubpoena.

(c) Appearance; resident; non-resident.

(1) A person who resides in this state may be requiredto appear:

(A) at a trial or hearing in the county in which thecase is pending; and

(B) at a deposition, or to produce documents,electronically stored information or tangible things, or to permit inspectionof premises only in the county in which the person resides, is employed, ortransacts business in person, or at such other place as the court may order.

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

(A) at a trial or hearing in the county in which thecase is pending; and

(B) at a deposition, or to produce documents,electronically stored information or tangible things, or to permit inspectionof premises only in the county in which the person is served or at such otherplace as the court may order.

(d) Payment ofproduction or copying costs. The party or attorney responsible for issuing thesubpoena shall pay the reasonable cost of producing or copying documents,electronically stored information, or tangible things. Upon the request of anyother party and the payment of reasonable costs, the party or attorneyresponsible for issuing the subpoena shall provide to the requesting partycopies of all documents, electronically stored information or tangible thingsobtained in response to the subpoena or shall make the tangible thingsavailable for inspection.

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

(1) The party or attorney responsible for issuing asubpoena shall take reasonable steps to avoid imposing an undue burden orexpense on the person subject to the subpoena. The court shall enforce thisduty and impose upon the party or attorney in breach of this duty anappropriate sanction, which may include, but is not limited to, lost earningsand a reasonable attorney fee.

(2) A subpoena to copy and mail or deliver documents orelectronically stored information, to produce documents, electronically storedinformation or tangible things, or to permit inspection of premises shallcomply 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.

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

(A) fails to allow reasonable time for compliance;

(B) requires a resident of this state to appear atother than a trial or hearing in a county in which the person does not reside,is not employed, or does not transact business in person;

(C) requires a non-resident of this state to appear atother than a trial or hearing in a county other than the county in which theperson was served;

(D) requires the person to disclose privileged or otherprotected matter and no exception or waiver applies;

(E) requires the person to disclose a trade secret orother confidential research, development, or commercial information;

(F) subjects the person to an undue burden or cost;

(G) requires the person to produce electronicallystored information in a form or forms to which the person objects;

(H) requires the person to provide electronicallystored information from sources that the person identifies as not reasonablyaccessible because of undue burden or cost; or

(I) requires the person to disclose an unretainedexpert's opinion or information not describing specific events or occurrencesin dispute and resulting from the expert's study that was not made at therequest of a party.

(4) Timing andform of objections.

(A) If the person subject to the subpoena or anon-party affected by the subpoena objects, the objection must be made beforethe date for compliance.

(B) The objection shall be stated in a concise,non-conclusory manner.

(C) If the objection is that the information commandedby the subpoena is privileged or protected and no exception or waiver applies,or requires the person to disclose a trade secret or other confidentialresearch, development, or commercial information, the objection shallsufficiently describe the nature of the documents, communications, or things notproduced to enable the party or attorney responsible for issuing the subpoenato contest the objection.

(D) If the objection is that the electronically storedinformation is from sources that are not reasonably accessible because of undueburden or cost, the person from whom discovery is sought must show that theinformation sought is not reasonably accessible because of undue burden orcost.

(E) The objection shall be served on the party orattorney responsible for issuing the subpoena. The party or attorneyresponsible for issuing the subpoena shall serve a copy of the objection on theother parties.

(5) If objection is made, or if a party requests aprotective order, the party or attorney responsible for issuing the subpoena isnot entitled to compliance but may request an order to compel compliance underRule 37(a). The objection or request shall be served on the other parties andon the person subject to the subpoena. An order compelling compliance shallprotect the person subject to or affected by the subpoena from significantexpense or harm. The court may quash or modify the subpoena. If the party orattorney responsible for issuing the subpoena shows a substantial need for theinformation that cannot be met without undue hardship, the court may ordercompliance upon specified conditions.

(f) Duties in responding to subpoena.

(1) A person commanded to copy and mail or deliverdocuments or electronically stored information or to produce documents,electronically stored information or tangible things shall serve on the partyor attorney responsible for issuing the subpoena a declaration under penalty oflaw stating in substance:

(A) that the declarant has knowledge of the factscontained in the declaration;

(B) that the documents, electronically storedinformation or tangible things copied or produced are a full and completeresponse to the subpoena;

(C) that the documents, electronically storedinformation or tangible things are the originals or that a copy is a true copyof the original; and

(D) the reasonable cost of copying or producing thedocuments, electronically stored information or tangible things.

(2) A person commanded to copy and mail or deliverdocuments or electronically stored information or to produce documents,electronically stored information or tangible things shall copy or produce themas they are kept in the usual course of business or shall organize and labelthem to correspond with the categories in the subpoena.

(3) If a subpoena does not specify the form or formsfor producing electronically stored information, a person responding to asubpoena must produce the information in the form or forms in which the personordinarily maintains it or in a form or forms that are reasonably usable.

(4) If the information produced in response to asubpoena 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 takereasonable steps to retrieve the information. The person who produced theinformation must preserve the information until the claim is resolved.

(g) Contempt. Failure by any person withoutadequate excuse to obey a subpoena served upon that person is punishable ascontempt of court.

(h) Procedure when witness evades service orfails to attend. If a witness evades service of a subpoena or fails toattend after service of a subpoena, the court may issue a warrant to thesheriff of the county to arrest the witness and bring the witness before thecourt.

(i) Procedure when witness is an inmate. Ifthe witness is an inmate as defined in Rule 6(e)(1), a party may move for anorder to examine the witness in the institution or to produce the witnessbefore the court or officer for the purpose of being orally examined.

(j) Subpoena unnecessary. A person presentin court or before a judicial officer may be required to testify in the samemanner as if the person were in attendance upon a subpoena.

 

Effective May 1,2021