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Rule 45.Subpoena.

(a) Form;issuance.

(a)(1) Every subpoena shall:

(a)(1)(A) issue from the court in whichthe action is pending;

(a)(1)(B) state the title and case numberof the action, the name of the court from which it is issued, and thename and address of the party or attorney responsible for issuing the subpoena;

(a)(1)(C) command each person to whom itis directed

(a)(1)(C)(i) to appear and give testimonyat 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) to appear and to permitinspection of premises;

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

(a)(1)(E) include a notice to personsserved with a subpoena in a form substantially similar to the approved subpoenaform. A subpoena may specify the form or forms in which electronically storedinformation is to be produced.

(a)(2) The clerk shall issue a subpoena,signed but otherwise in blank, to a party requesting it, who shall complete itbefore service. An attorney admitted to practice in Utah may issue and sign asubpoena 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 a person'sappearance, the party or attorney responsible for issuing the subpoena shalltender with the subpoena the fees for one day's attendance and the mileageallowed by law. When the subpoena is issued on behalf of the United States, orthis state, or any officer or agency of either, fees and mileage need not betendered.

(b)(3) If the subpoena commands a personto copy and mail or deliver documents or electronically stored information, toproduce documents, electronically stored information or tangible things forinspection, copying, testing or sampling or to permit inspection of premises,the party or attorney responsible for issuing the subpoena shall serve eachparty with the subpoena by delivery or other method of actual notice beforeserving the subpoena.

(c)Appearance; resident; non-resident.

(c)(1) A person who resides in this statemay be required to appear:

(c)(1)(A) at a trial or hearing in thecounty in which the case is pending; and

(c)(1)(B) at a deposition, or to producedocuments, electronically stored information or tangible things, or to permitinspection of premises only in the county in which the person resides, isemployed, or transacts business in person, or at such other place as the courtmay 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 a trial or hearing in thecounty in which the case is pending; and

(c)(2)(B) at a deposition, or to producedocuments, electronically stored information or tangible things, or to permitinspection of premises only in the county in which the person is served or atsuch other place as the court may order.

(d)Payment of production 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 things obtainedin response to the subpoena or shall make the tangible things available forinspection.

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

(e)(1) The party or attorney responsiblefor issuing a subpoena shall take reasonable steps to avoid imposing an undueburden or expense on the person subject to the subpoena. The court shallenforce this duty and impose upon the party or attorney in breach of this dutyan appropriate sanction, which may include, but is not limited to, lostearnings 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 the subpoena must beallowed at least 14 days after service to comply.

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

(e)(3)(A) fails to allow reasonable timefor compliance;

(e)(3)(B) requires a resident of thisstate to appear at other than a trial or hearing in a county in which theperson does not reside, is not employed, or does not transact business inperson;

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

(e)(3)(D) requires the person to discloseprivileged or other protected matter and no exception or waiver applies;

(e)(3)(E) requires the person to disclosea trade secret or other confidential research, development, or commercialinformation;

(e)(3)(F) subjects the person to an undueburden or cost;

(e)(3)(G) requires the person to produceelectronically stored information in a form or forms to which the personobjects;

(e)(3)(H) requires the person to provideelectronically stored information from sources that the person identifies asnot reasonably accessible because of undue burden or cost; or

(e)(3)(I) requires the person to disclosean unretained expert's opinion or information not describing specific events oroccurrences in dispute and resulting from the expert's study that was not madeat 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 stated ina 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 served onthe 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 a partyrequests a protective order, the party or attorney responsible for issuing thesubpoena is not entitled to compliance but may request an order to compelcompliance under Rule 37(a). The objection or request shall be served on the otherparties and on the person subject to the subpoena. An order compellingcompliance shall protect the person subject to or affected by the subpoena fromsignificant expense or harm. The court may quash or modify the subpoena. If theparty or attorney responsible for issuing the subpoena shows a substantial needfor the information that cannot be met without undue hardship, the court mayorder compliance upon specified conditions.

(f)Duties in responding to subpoena.

(f)(1) A person commanded to copy and mailor deliver documents or electronically stored information or toproduce documents, electronically stored information or tangible things shallserve on the party or attorney responsible for issuing the subpoena adeclaration under penalty of law stating in substance:

(f)(1)(A) that the declarant hasknowledge of the facts contained in the declaration;

(f)(1)(B) that the documents,electronically stored information or tangible things copied or produced are afull and complete response to the subpoena;

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

(f)(1)(D) the reasonable cost of copyingor producing the documents, electronically stored information or tangiblethings.

(f)(2) A person commanded to copy and mailor 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 specify theform 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 takereasonable steps to retrieve the information. The person who produced theinformation must preserve the information until the claim is resolved.

(g)Contempt. Failure byany person without adequate excuse to obey a subpoena served upon that personis punishable as contempt of court.

(h) Procedurewhen 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 inmate as defined in Rule 6(e)(1), a party may move for an order to examine the witness in theinstitution or to produce the witness before the court or officer for thepurpose of being orally examined.

(j)Subpoena unnecessary. Aperson present in court or before a judicial officer may be required to testifyin the same manner as if the person were in attendance upon a subpoena.

Advisory Committee Notes

 

 

Effective May 1, 2018